cp 530 – convention of social security coordination
TRANSCRIPT
Switzerland No.4 (2021)
Convention on Social Security Coordination between the United Kingdom of Great Britain and
Northern Ireland and the Swiss Confederation
London, 9 September 2021
[The Convention is not in force]
Presented to Parliament
by the Secretary of State for Foreign, Commonwealth and Development Affairs
by Command of Her Majesty
September 2021
CP 530
© Crown copyright 2021
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ISBN 978-1-5286-2920-1 E02676373 09/21
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CONVENTION ON SOCIAL SECURITY COORDINATION BETWEEN
THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN
IRELAND AND THE SWISS CONFEDERATION
The United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) and
The Swiss Confederation (“Switzerland”) (together “the States” and individually “the State”)
NOTING that the United Kingdom withdrew from the European Union on 31
January 2020 and ceased applying the Free Movement of Persons Agreement with
effect from 1 January 2021,
RECOGNISING the importance of the coordination of social security rights enjoyed
by persons moving between both States to work, to stay or to reside, as well as the
rights enjoyed by their family members and survivors,
Have agreed as follows:
TITLE I
GENERAL PROVISIONS
ARTICLE 1
Definitions
For the purposes of this Convention, the following definitions apply:
(a) “activity as an employed person” means any activity or equivalent
situation treated as such for the purposes of the social security legislation
of the State in which such activity or equivalent situation exists;
(b) “activity as a self-employed person” means any activity or equivalent
situation treated as such for the purposes of the social security legislation
of the State in which such activity or equivalent situation exists;
(c) “assisted reproduction services” means any medical, surgical or obstetric
services provided for the purpose of assisting a person to carry a child;
(d) “benefits in kind” means:
(i) for the purposes of Chapter 1 of Title III, benefits in kind provided
for under the legislation of a State which are intended to supply,
make available, pay directly or reimburse the cost of medical care
and products and services ancillary to that care;
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(ii) for the purposes of Chapter 2 of Title III, all benefits in kind
relating to accidents at work and occupational diseases as defined
in point (i) and provided for under the States’ accidents at work
and occupational diseases schemes;
(e) “civil servant” means a person considered to be such or treated as such
by the State to which the administration employing them is subject;
(f) “competent authority” means, in respect of each State, the Minister,
Ministers or other equivalent authority responsible for social security
schemes throughout or in any part of the State in question;
(g) “competent institution” means:
(i) the institution with which the person concerned is insured at the
time of the application for benefit; or
(ii) the institution from which the person concerned is or would be
entitled to benefits if that person or a member or members of their
family resided in the State in which the institution is situated; or
(iii) the institution designated by the competent authority of the State
concerned; or
(iv) in the case of a scheme relating to an employer’s obligations in
respect of the matters to which this Convention applies under
Article 6, either the employer or the insurer involved or, in default
thereof, the body or authority designated by the competent
authority of the State concerned;
(h) “competent State” means the State in which the competent institution is
situated;
(i) “death grant” means any one-off payment in the event of death,
excluding the lump-sum benefits referred to in paragraph (y);
(j) “electronic exchange” means a system for the exchange of social security
information using transmission by electronic means;
(k) “family benefit” means all benefits in kind or in cash intended to meet
family expenses;
(l) “fraud” means any deliberate act or omission to act, carried out with the
intention to either:
(i) receive social security benefits, or enable another person to receive
social security benefits, when the conditions of entitlement to such
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benefits under the legislation of the State or States concerned or
under the provisions of this Convention are not met; or
(ii) avoid paying social security contributions, or enable another
person to avoid paying social security contributions, when such
contributions are required under the legislation of the State or
States concerned or under the provisions of this Convention;
(m) “frontier worker” means any person pursuing an activity as an employed
or self-employed person in a State and who resides in the other State to
which that person returns as a rule daily or at least once a week;
(n) “home base” means the place from where the crew member normally
starts and ends a duty period or a series of duty periods, and where, under
normal conditions, the operator/airline is not responsible for the
accommodation of the crew member concerned;
(o) “institution” means, in respect of each State, the body or authority
responsible for applying all or part of the legislation;
(p) “institution of the place of residence” and “institution of the place of
stay” mean, respectively, the institution which is competent to provide
benefits in the place where the person concerned resides and the
institution which is competent to provide benefits in the place where the
person concerned is staying, in accordance with the legislation
administered by that institution or, where no such institution exists, the
institution designated by the competent authority of the State concerned;
(q) “insured person” means, in relation to the matters to which Chapters 1
and 3 of Title III apply, any person satisfying the conditions required
under the legislation of the State competent under Title II to have the
right to benefits, taking into account the provisions of this Convention;
(r) “legal residence” means residence or stay in accordance with the relevant
State’s immigration laws;
(s) “legislation” means, in respect of each State, laws, regulations and other
statutory provisions and all other implementing measures relating to the
matters to which this Convention applies under Article 6, but excludes
contractual provisions other than those which serve to implement an
insurance obligation arising from the laws and regulations referred to in
this paragraph or which have been the subject of a decision by the public
authorities which makes them obligatory or extends their scope, provided
that the State concerned makes a declaration to that effect, notified to the
Joint Administrative Committee;
(t) “liaison body” means any body designated by a competent authority for one or more of the branches of social security referred to in Article 6 of
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this Convention to respond to requests for information and assistance for
the purposes of the application of this Convention and which has to fulfil
the tasks assigned to it under Title IV of Annex 1;
(u) “long-term care benefit” means a benefit in kind or in cash the purpose of which is to address the care needs of a person who, on account of
impairment, requires considerable assistance, including but not limited
to assistance from another person or persons to carry out essential
activities of daily living for an extended period of time in order to support
their personal autonomy; this includes benefits granted for the same
purpose to a person providing such assistance;
(v) “member of the family” means:
(i) (A) any person defined or recognised as a member of the family
or designated as a member of the household by the legislation
under which benefits are provided;
(B) with regard to benefits in kind pursuant to Chapter 1of Title
III, any person defined or recognised as a member of the family or
designated as a member of the household by the legislation of the
State in which that person resides;
(ii) if the legislation of a State which is applicable under point (i) does
not make a distinction between the members of the family and
other persons to whom it is applicable, the spouse, minor children
and dependent children who have reached the age of majority shall
be considered members of the family;
(iii) if, under the legislation which is applicable under points (i) and
(ii), a person is considered a member of the family or member of
the household only if that person lives in the same household as
the insured person or pensioner, this condition shall be considered
satisfied if the person in question is mainly dependent on the
insured person or pensioner;
(w) “national of a European Union Member State” means a national of a Member State of the European Union according to the laws of the
relevant Member State;
(x) “obligation of professional secrecy” means an obligation to protect such
information effectively through appropriate security, technical and
organisational measures and prevent unauthorised access, unauthorised
modification and unauthorised disclosure of such information;
(y) “pension” covers not only pensions but also lump-sum benefits which
can be substituted for them and payments in the form of reimbursement
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of contributions and, subject to the provisions of Title III, revaluation
increases or supplementary allowances;
(z) “period of employment” or “period of self-employment” mean periods
so defined or recognised by the legislation under which they were
completed, and all periods treated as such, where they are regarded by
that legislation as equivalent to periods of employment or to periods of
self-employment;
(aa) “period of insurance” means periods of contribution, employment or
self-employment as defined or recognised as periods of insurance by the
legislation under which they were completed or considered as completed,
and all periods treated as such, where they are regarded by that legislation
as equivalent to periods of insurance;
(bb) “period of residence” means periods so defined or recognised by the
legislation under which they were completed or considered as
completed;
(cc) “personal data” means any data concerning or relating to an identified or
identifiable natural person;
(dd) “refugee” has the meaning assigned to it in Article 1 of the Convention
relating to the Status of Refugees, signed in Geneva on 28 July 1951;
(ee) “registered office or place of business” means the registered office or place of business where the essential decisions of the undertaking are
adopted and where the functions of its central administration are carried
out;
(ff) “residence” (except in Article 3) means the place where a person
habitually resides;
(gg) “special non-contributory cash benefits” means those non-contributory
cash benefits which:
(i) are intended to provide either:
(A) supplementary, substitute or ancillary cover against the risks
covered by the branches of social security referred to in
Article 6(1), and which guarantee the persons concerned a
minimum subsistence income having regard to the economic
and social situation in the State concerned; or
(B) solely specific protection for the disabled, closely linked to
the said person’s social environment in the State concerned,
and
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(ii) where the financing exclusively derives from compulsory taxation
intended to cover general public expenditure and the conditions for
providing and for calculating the benefits are not dependent on any
contribution in respect of the beneficiary. However, benefits
provided to supplement a contributory benefit shall not be
considered to be contributory benefits for this reason alone;
(hh) “special scheme for civil servants” means any social security scheme
which is different from the general social security scheme applicable to
employed persons in the State concerned and to which all, or certain
categories of, civil servants are directly subject;
(ii) “stateless person” has the meaning assigned to it in Article 1 of the
Convention relating to the Status of Stateless Persons, signed in New
York on 28 September 1954;
(jj) “stay” means temporary residence;
(kk) “Swiss national” means a Swiss citizen according to the Federal
Constitution of the Swiss Confederation;
(ll) “United Kingdom national” means:
(i) a British citizen;
(ii) a person who is a British subject by virtue of Part IV of the British
Nationality Act 1981 and who has the right of abode in the United
Kingdom and is therefore exempt from United Kingdom
immigration control;
(iii) a British overseas territories citizen who acquires their citizenship
from a connection with Gibraltar.
ARTICLE 2
Persons covered
(1) As applied by Switzerland, this Convention shall apply to:
(a) United Kingdom nationals, Swiss nationals, nationals of a European
Union Member State, stateless persons and refugees, in each case who
are or have been subject to the legislation of either or both of the States;
and
(b) the members of the family and survivors of the persons described in point
(a).
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(2) Notwithstanding paragraph 1, Switzerland shall apply the provisions of this
Convention, insofar as they relate to a determination of the applicable legislation for
the purposes of Title II, to:
(a) persons who are or have been subject to the legislation of either or both
of the States; and
(b) the members of the family and survivors of the persons described in point
(a).
(3) As applied by the United Kingdom, this Convention shall apply to:
(a) persons who are or have been subject to the legislation of either or both
the States; and
(b) the members of the family and survivors of the persons described in point
(a).
(4) Notwithstanding paragraph 3, the United Kingdom shall apply the provisions
of this Convention (except Article 19), insofar as they relate to benefits in kind, only
to:
(a) United Kingdom nationals, Swiss nationals, nationals of a European
Union Member State, stateless persons and refugees, in each case who
are or have been subject to the legislation of either or both of the States;
and
(b) the members of the family and survivors of the persons described in point
(a).
ARTICLE 3
Legally residing
(1) This Convention shall apply to persons legally residing in Switzerland or the
United Kingdom.
(2) Paragraph 1 of this Article shall not affect entitlements to cash benefits which
relate to previous periods of legal residence of persons covered by Article 2.
ARTICLE 4
Cross border situations
This Convention shall not apply to a person whose situation is confined in all respects
either within Switzerland, or within the United Kingdom.
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ARTICLE 5
Territorial scope
The provisions of this Convention shall apply, on the one hand, to the United
Kingdom and Gibraltar and, on the other hand, to Switzerland. Accordingly,
references in this Convention to the “United Kingdom” shall include Gibraltar.
ARTICLE 6
Matters covered
(1) This Convention shall apply to the following branches of social security:
(a) sickness benefits;
(b) maternity and equivalent paternity benefits;
(c) invalidity benefits;
(d) old-age benefits;
(e) survivors’ benefits;
(f) benefits in respect of accidents at work and occupational diseases;
(g) death grants;
(h) unemployment benefits.
(2) Unless otherwise provided for in Annex 4, this Convention shall apply to
general and special social security schemes, whether contributory or non-
contributory, and to schemes relating to the obligations of an employer or ship-
owner.
(3) The provisions of Title III shall not, however, affect the legislative provisions
of either State concerning a ship-owner’s obligations.
(4) This Convention shall not apply to:
(a) special non-contributory cash benefits which are listed in Part 1 of Annex
2;
(b) social and medical assistance;
(c) benefits in relation to which a State assumes the liability for damages to
persons and provides for compensation, such as those for victims of war
and military action or their consequences; victims of crime, assassination
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or terrorist acts; victims of damage occasioned by agents of the State in
the course of their duties; or victims who have suffered a disadvantage
for political or religious reasons or for reasons of descent;
(d) long-term care benefits which are listed in Part 2 of Annex 2;
(e) assisted reproduction services;
(f) payments which are connected to a branch of social security listed in
paragraph 1 and which are:
(i) paid to meet expenses for heating in cold weather; and
(ii) listed in Part 3 of Annex 2;
(g) family benefits;
(h) Swiss old-age, survivors’ and invalidity benefits under the statutory occupational benefit plans.
ARTICLE 7
Relationship with other agreements
(1) This Convention shall apply without prejudice to the Agreement between the
Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland
on citizens’ rights following the withdrawal of the United Kingdom from the European Union and the free movement of persons Agreement, signed in Berne on
25 February 2019.
(2) Nothing in this Convention shall be construed as requiring either State to act
in a manner inconsistent with its obligations under agreements with third countries.
ARTICLE 8
Equality of treatment
(1) Unless otherwise provided for in this Convention, as regards the matters to
which this Convention applies under Article 6, persons to whom this Convention
applies shall enjoy the same benefits and be subject to the same obligations under
the legislation of a State as the nationals thereof.
(2) This provision does not apply to the exportability of cash benefits covered by
point (c) of Article 6(1).
(3) This provision does not apply to the Swiss legislation:
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(a) in relation to voluntary old-age, survivors’ and disability insurance;
(b) in relation to old-age, survivors’ and disability insurance of Swiss
nationals who are gainfully occupied abroad in the service of the Swiss
Confederation or organisations in the meaning of subparagraph 1(c) of
Article 1a of the Federal Law on old-age and survivors’ insurance; and
(c) in relation to voluntary old-age, survivors’ and disability insurance for Swiss nationals employed by organisations in the meaning of
subparagraph 4(b) of Article 1a of the Federal Law on old-age and
survivors’ insurance.
ARTICLE 9
Equal treatment of benefits, income, facts or events
Unless otherwise provided for in this Convention, the States shall ensure the
application of the principle of equal treatment of benefits, income, facts or events in
the following manner:
(a) where, under the legislation of the competent State, the receipt of social
security benefits and other income has certain legal effects, the relevant
provisions of that legislation shall also apply to the receipt of equivalent
benefits acquired under the legislation of the other State or to income
acquired in the other State;
(b) where, under the legislation of the competent State, legal effects are
attributed to the occurrence of certain facts or events, that State shall take
account of like facts or events that have occurred in the other State as
though they had taken place in its own territory.
ARTICLE 10
Aggregation of periods
Unless otherwise provided for in this Convention, the competent institution of a State
shall, to the extent necessary, take into account periods of insurance, employment,
self-employment or residence completed under the legislation of the other State as
though they were periods completed under the legislation which it applies, where its
legislation makes conditional upon the completion of periods of insurance,
employment, self-employment or residence:
(a) the acquisition, retention, duration or recovery of the right to benefits;
(b) the coverage by legislation; or
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(c) the access to or the exemption from compulsory, optional continued or
voluntary insurance.
ARTICLE 11
Waiving of residence rules
The States shall ensure the application of the principle of exportability of cash
benefits in accordance with paragraphs (a) and (b):
(a) Cash benefits payable under the legislation of a State or under this
Convention shall not be subject to any reduction, amendment,
suspension, withdrawal or confiscation on account of the fact that the
beneficiary or the members of their family reside in the other State.
(b) Paragraph (a) does not apply to the cash benefits covered by points (c)
and (h) of Article 6(1).
ARTICLE 12
Prevention of overlapping of benefits
Unless otherwise provided, this Convention shall neither confer nor maintain the
right to several benefits of the same kind for one and the same period of compulsory
insurance.
TITLE II
DETERMINATION OF THE LEGISLATION APPLICABLE
ARTICLE 13
General rules
(1) Persons to whom this Convention applies shall be subject to the legislation of
a single State only. Such legislation shall be determined in accordance with this Title.
(2) For the purposes of this Title, persons receiving cash benefits because or as a
consequence of their activity as an employed or self-employed person shall be
considered to be pursuing the said activity. This shall not apply to invalidity, old-age
or survivors’ pensions or to pensions in respect of accidents at work or occupational
diseases or to sickness benefits in cash covering treatment for an unlimited period.
(3) Subject to Articles 14 to 17:
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(a) a person pursuing an activity as an employed or self-employed person in
a State shall be subject to the legislation of that State;
(b) a civil servant shall be subject to the legislation of the State to which the
administration employing them is subject;
(c) any other person to whom points (a) and (b) do not apply shall be subject
to the legislation of the State of residence, without prejudice to other
provisions of this Convention guaranteeing them benefits under the
legislation of the other State.
(4) For the purposes of this Title, an activity as an employed or self-employed
person normally pursued on board a vessel at sea flying the flag of a State shall be
deemed to be an activity pursued in that State. However, a person employed on board
a vessel flying the flag of a State and remunerated for such activity by an undertaking
or a person whose registered office or place of business is in the other State shall be
subject to the legislation of the latter State if that person resides in that State. The
undertaking or person paying the remuneration shall be considered as the employer
for the purposes of the said legislation.
(5) An activity as a flight crew or cabin crew member performing air passenger or
freight services shall be deemed to be an activity pursued in the State where the home
base is located.
(6) (a) Members of the family residing or staying with a person who is subject
to the legislation of a State as a result of the application of paragraph
(3)(b), Article 14 or Article 17 shall also be subject to the legislation of
that State.
(b) Point (a) does not apply to a member of the family who is pursuing an
activity as an employed or self-employed person or is a civil servant.
ARTICLE 14
Detached workers
(1) A person who pursues an activity as an employed person in a State for an
employer which normally carries out its activities there and who is sent by that
employer to the other State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first State, provided that:
(a) the anticipated duration of such work does not exceed 24 months; and
(b) that person is not sent to replace another detached worker.
(2) A person who normally pursues an activity as a self-employed person in a State
who goes to pursue a similar activity in the other State shall continue to be subject
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to the legislation of the first State, provided that the anticipated duration of such
activity does not exceed 24 months.
ARTICLE 15
Pursuit of activities in both States
(1) A person who normally pursues an activity as an employed person in both
States shall be subject to the legislation of the State of residence, provided they
pursue a substantial part of their activity there.
(2) Where a person does not pursue a substantial part of the activity described in
paragraph 1 in the State of residence, the legislation applicable to that person shall
be determined as follows:
(a) if the person is employed by one or more employers, all of which have
their registered office or place of business in one State, they shall be
subject to the legislation of that State;
(b) if the person is employed by two or more employers which have their
registered office or place of business in both States, they shall be subject
to the legislation of the State which is not their State of residence;
(c) if the person is employed by one or more employers, none of which have
a registered office or place of business in either State, they shall be
subject to the legislation of their State of residence.
(3) A person who normally pursues an activity as a self-employed person in both
States shall be subject to:
(a) the legislation of their State of residence, provided they pursue a
substantial part of their activity there; or
(b) the legislation of the State in which the centre of interest of their activities
is situated, provided they do not reside in the State in which they pursue
a substantial part of their activity.
(4) A person who normally pursues an activity as an employed person and an
activity as a self-employed person in both States shall be subject to the legislation of
the State in which they carry out their activity as an employed person; or, if that
person is employed in both States, that person shall be subject to the legislation
determined in accordance with paragraph 1.
(5) A person who is employed as a civil servant by a State and who pursues an
activity as an employed and/or self-employed person in the other State shall be
subject to the legislation of the first State.
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(6) A person referred to in paragraphs 1 to 5 shall be treated, for the purposes of
the legislation determined in accordance with these provisions, as though that person
was pursuing all their activities as an employed or self-employed person and were
receiving all their income in the State concerned.
ARTICLE 16
Voluntary insurance or optional continued insurance
(1) Articles 13 and 15 shall not apply to voluntary insurance or to optional
continued insurance unless, in respect of one of the branches referred to in Article 6,
only a voluntary scheme of insurance exists in a State.
(2) Where, by virtue of the legislation of a State, the person concerned is subject
to compulsory insurance in that State, that person may not be subject to a voluntary
insurance scheme or an optional continued insurance scheme in the other State. In
all other cases in which, for a given branch, there is a choice between several
voluntary insurance schemes or optional continued insurance schemes, the person
concerned shall join only the scheme of their choice.
(3) However, in respect of invalidity, old-age and survivors’ benefits, the person
concerned may join the voluntary or optional continued insurance scheme of a State,
even if that person is compulsorily subject to the legislation of the other State,
provided that that person has been subject at some stage in their career to the
legislation of the first State because of, or as a consequence of, an activity as an
employed or self-employed person and provided such overlapping is explicitly or
implicitly allowed under the legislation of the first State.
(4) Where the legislation of a State makes admission to voluntary insurance or
optional continued insurance conditional upon residence in that State or upon
previous activity as an employed or self-employed person, Article 9(b) shall apply
only to persons who have been subject, at some earlier stage, to the legislation of that
State on the basis of an activity as an employed or self-employed person.
ARTICLE 17
Exceptions
The competent authorities of the States or the bodies designated by these authorities
may by common agreement provide for exceptions to Articles 13 to 15 in the interest
of certain persons or categories of persons.
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ARTICLE 18
Obligations of the employer
(1) An employer who has its registered office or place of business outside the
competent State shall fulfil all the obligations laid down by the legislation applicable
to its employees, in particular any obligation to pay the contributions provided for
by that legislation, as if it had its registered office or place of business in the
competent State.
(2) An employer who does not have a registered office or place of business in the
State whose legislation is applicable and the employee may agree that the latter may
fulfil the employer’s obligations on its behalf as regards the payment of contributions
without prejudice to the employer’s underlying obligations. The employer shall send notice of such an arrangement to the competent institution of that State.
TITLE III
SPECIAL PROVISIONS CONCERNING THE VARIOUS CATEGORIES
OF BENEFITS
CHAPTER 1
Sickness, maternity and equivalent paternity benefits
ARTICLE 19
Immigration health fees
This Convention shall apply without prejudice to the right of a State to charge a
health fee under domestic law in connection with an application for a permit to enter,
to stay, to work, or to reside in that State.
Section 1
Insured persons and members of their families except pensioners and
members of their families
ARTICLE 20
Residence in the State which is not the competent State
An insured person or members of their family who reside in the State which is not
competent shall receive benefits in kind in the State of residence provided, on behalf
of the competent institution, by the institution of the place of residence in accordance
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with the legislation it applies, as though the persons concerned were insured under
the said legislation.
ARTICLE 21
Stay in the competent State when residence is in the other State – special rules
for the members of the families of frontier workers
(1) Unless otherwise provided for by paragraph 2, the insured person and the
members of their family referred to in Article 20 shall also be entitled to benefits in
kind while staying in the competent State. The benefits in kind shall be provided by
the competent institution and at its own expense, in accordance with the legislation
it applies, as though the persons concerned resided in that State.
(2) The members of the family of a frontier worker shall be entitled to benefits in
kind during their stay in the competent State.
Where the United Kingdom is the competent State, however, the members of the
family of a frontier worker who reside in Switzerland shall be entitled to benefits in
kind in the United Kingdom only under the conditions laid down in Article 22(1).
ARTICLE 22
Stay outside the competent State
(1) Unless otherwise provided for by paragraph 2, an insured person and the
members of their family staying in the State which is not competent shall be entitled
to benefits in kind, provided on behalf of the competent institution by the institution
of the place of stay in accordance with the legislation it applies, as though the persons
concerned were insured under that legislation, where:
(a) the benefits in kind become necessary on medical grounds during their
stay, in the opinion of the provider of the benefits in kind, taking into
account the nature of the benefits and the expected length of the stay;
(b) the person did not travel to that State with the purpose of receiving the
benefits in kind, unless the person is a passenger or member of the crew
on a vessel or aircraft travelling to that State and the benefits in kind
became necessary on medical grounds during the voyage or flight; and
(c) a valid entitlement document is presented in accordance with Article
22(1) of Annex 1.
(2) The Joint Administrative Committee shall list benefits in kind which, in order
to be provided during a stay in the other State, require for practical reasons a prior
agreement between the person concerned and the institution providing the care.
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ARTICLE 23
Travel with the purpose of receiving benefits in kind – authorisation to receive
appropriate treatment outside the State of residence
(1) Unless otherwise provided for in this Convention, an insured person travelling
to the other State with the purpose of receiving benefits in kind during the stay shall
seek authorisation from the competent institution.
(2) An insured person who is authorised by the competent institution to go to the
other State with the purpose of receiving the treatment appropriate to their condition
shall receive the benefits in kind provided, on behalf of the competent institution, by
the institution of the place of stay, in accordance with the legislation it applies, as
though that person were insured under the said legislation. The authorisation shall be
accorded where the treatment in question is among the benefits provided for by the
legislation in the State where the person concerned resides and where that person
cannot be given such treatment within a time limit which is medically justifiable,
taking into account their current state of health and the probable course of their
illness.
(3) Paragraphs 1 and 2 apply mutatis mutandis to the members of the family of an
insured person.
ARTICLE 24
Cash benefits
(1) An insured person and members of their family residing or staying in the State
which is not competent shall be entitled to cash benefits provided by the competent
institution in accordance with the legislation it applies.
(2) The competent institution of a State whose legislation stipulates that the
calculation of cash benefits shall be based on average income or on an average
contribution basis shall determine such average income or average contribution basis
exclusively by reference to the incomes confirmed as having been paid, or
contribution bases applied, during the periods completed under the said legislation.
(3) The competent institution of a State whose legislation provides that the
calculation of cash benefits shall be based on standard income shall take into account
exclusively the standard income or, where appropriate, the average of standard
incomes for the periods completed under the said legislation.
(4) Paragraphs 2 and 3 apply mutatis mutandis to cases where the legislation
applied by the competent institution lays down a specific reference period which
corresponds in the case in question either wholly or partly to the periods which the
person concerned has completed under the legislation of the other State.
19
ARTICLE 25
Pension claimants
(1) An insured person who, on making a claim for a pension, or during the
investigation thereof, ceases to be entitled to benefits in kind under the legislation of
the State last competent, shall remain entitled to benefits in kind under the legislation
of the State in which that person resides, provided that the pension claimant satisfies
the insurance conditions of the legislation of the State referred to in paragraph 2. The
right to benefits in kind in the State of residence shall also apply to the members of
the family of the pension claimant.
(2) The benefits in kind shall be chargeable to the institution of the State which, in
the event of a pension being awarded, would become competent under Articles 26
and 27.
Section 2
Special provisions for pensioners and members of their families
ARTICLE 26
Right to benefits in kind for persons who receive pensions under the
legislation of both States
A person who receives pensions under the legislation of both States, of which one is
the State of residence, shall, with the members of their family, receive such benefits
in kind from and at the expense of the institution of the place of residence, as though
that person were a pensioner whose pension was payable solely under the legislation
of that State.
ARTICLE 27
Right to benefits in kind for persons who receive a pension or pensions under
the legislation of one State
(1) A person who receives a pension or pensions under the legislation of one State
and resides in the other State but is not entitled to benefits in kind under the
legislation of the State of residence, shall nevertheless receive such benefits for
themselves and the members of their family, insofar as the pensioner would be
entitled to them under the legislation of the State competent in respect of their
pension, if they resided in that State. The benefits in kind shall be provided by the
institution of the place of residence, as though the person concerned were entitled to
a pension and entitled to benefits in kind under the legislation of that State. The costs
of these benefits in kind shall be borne by the institution of the State from which that
person receives a pension.
20
(2) Where a person receiving a pension or pensions under the legislation of
Switzerland resides in the United Kingdom, and that person does not receive a
pension from the United Kingdom, the cost of benefits in kind provided to them shall
be borne by the institution of Switzerland to the extent that the person would be
entitled to such benefits if they resided in Switzerland.
ARTICLE 28
Residence of members of the family in the State other than the one in which
the pensioner resides
Where a person:
(a) receives a pension or pensions under the legislation of one or both States;
and
(b) resides in the State other than the one in which members of their family
reside,
those members of that person’s family shall be entitled to receive benefits in kind
from the institution of the place of their residence in accordance with the legislation
it applies insofar as the pensioner is entitled to benefits in kind under the legislation
of either State. The costs shall be borne by the competent institution responsible for
the costs of the benefits in kind provided to the pensioner in their State of residence.
ARTICLE 29
Stay of the pensioner or the members of their family in the State other than
the State of residence – stay in the competent State – authorisation for
appropriate treatment outside the State of residence
(1) Article 22 applies mutatis mutandis to:
(a) a person receiving a pension or pensions under the legislation of one or
both States and who is entitled to benefits in kind under the legislation
of one of the States which provide their pension(s);
(b) the members of their family,
who are staying in the State other than the one in which they reside.
(2) Article 21(1) applies mutatis mutandis to the persons described in paragraph 1
when they stay in Switzerland and the competent institution responsible for the cost
of the benefits in kind provided to the pensioner in their State of residence is situated
in Switzerland.
21
(3) Article 23 applies mutatis mutandis to a pensioner or members of their family
who are staying in the State other than the one in which they reside with the purpose
of receiving in that State the treatment appropriate to their condition.
(4) Unless otherwise provided for by paragraph 5, the cost of the benefits in kind
referred to in paragraphs 1 to 3 shall be borne by the competent institution
responsible for the cost of benefits in kind provided to the pensioner in their State of
residence.
(5) The cost of the benefits in kind referred to in paragraph 3 shall be borne by the
institution of the place of residence of the pensioner or of the members of their
family, if these persons reside in a State which has opted for reimbursement on the
basis of fixed amounts. In these cases, for the purposes of paragraph 3, the institution
of the place of residence of the pensioner or of the members of their family shall be
considered to be the competent institution.
ARTICLE 30
Cash benefits for pensioners
(1) Cash benefits shall be paid to a person receiving a pension or pensions under
the legislation of one or both States by the competent institution of the State in which
is situated the competent institution responsible for the cost of benefits in kind
provided to the pensioner in their State of residence. Article 24 applies mutatis
mutandis.
(2) Paragraph 1 shall also apply to the members of a pensioner’s family.
ARTICLE 31
Contributions by pensioners
(1) The institution of a State which is responsible under the legislation it applies
for making deductions in respect of contributions for sickness, maternity and
equivalent paternity benefits, may request and recover such deductions, calculated
in accordance with the legislation it applies, only to the extent that the cost of the
benefits pursuant to Articles 26 to 28 is to be borne by an institution of that State.
(2) Where, in the cases referred to in Article 27(2), the acquisition of sickness,
maternity and equivalent paternity benefits is subject to the payment of contributions
or similar payments under the legislation of a State in which the pensioner concerned
resides, these contributions shall not be payable by virtue of such residence.
22
Section 3
Common provisions
ARTICLE 32
General provisions
Articles 26 to 31 shall not apply to a pensioner or the members of their family who
are entitled to benefits under the legislation of a State on the basis of an activity as
an employed or self-employed person. In such a case, the person concerned shall be
subject, for the purposes of this Chapter, to Articles 20 to 24.
ARTICLE 33
Prioritising of the right to benefits in kind – special rule for the right of
members of the family to benefits in the State of residence
(1) Unless otherwise provided for by paragraph 2, where a member of the family
has an independent right to benefits in kind based on the legislation of either State or
under this Chapter such right shall take priority over a derivative right to benefits in
kind for members of the family.
(2) Where the independent right in the State of residence exists directly and solely
on the basis of the residence of the person concerned in that State, a derivative right
to benefits in kind shall take priority over the independent right.
ARTICLE 34
Family members residing in the United Kingdom
Notwithstanding Article 20, Articles 26 to 28 and Article 33, the members of the
family residing in the United Kingdom of a person for whom Switzerland is the
competent State under the terms of Title II of this Convention, or of an employed or
self-employed person, a civil servant or a pensioner who resides in Switzerland and
is insured under the Swiss sickness insurance scheme, or of a person for whom
Switzerland is the competent State under Articles 27 to 28, are entitled to benefits in
kind as though they were insured solely under the legislation of the United Kingdom
and have no derivative right to benefits in kind in Switzerland.
23
ARTICLE 35
Reimbursements between institutions
(1) The benefits in kind provided by the institution of a State on behalf of the
institution of the other State under this Chapter shall give rise to full reimbursement.
(2) The reimbursements referred to in paragraph 1 shall be determined and
effected in accordance with Annex 1, either on production of proof of actual
expenditure, or on the basis of fixed amounts, as appropriate.
(3) The States, and their competent authorities, may provide for other methods of
reimbursement or waive all reimbursement between the institutions coming under
their jurisdiction.
CHAPTER 2
Benefits in respect of accidents at work and occupational diseases
ARTICLE 36
Right to benefits in kind and in cash
(1) Without prejudice to any more favourable provisions in paragraphs 2 and 3 of
this Article, Articles 20, 21(1), 22(1) and 23(1) shall also apply to benefits relating
to accidents at work or occupational diseases.
(2) A person who has sustained an accident at work or has contracted an
occupational disease and who resides or stays in a State other than the competent
State shall be entitled to the special benefits in kind of the scheme covering accidents
at work and occupational diseases provided, on behalf of the competent institution,
by the institution of the place of residence or stay in accordance with the legislation
which it applies, as though that person were insured under that legislation.
(3) The competent institution may not refuse to grant the authorisation provided
for in Article 23(1) to a person who has sustained an accident at work or who has
contracted an occupational disease and is entitled to benefits chargeable to that
institution, where the treatment appropriate to their condition cannot be given in the
State in which that person resides within a time limit which is medically justifiable,
taking into account that person’s current state of health and the probable course of the illness.
(4) Article 24 also applies to benefits falling within this Chapter.
24
ARTICLE 37
Costs of transport
(1) The competent institution of a State whose legislation provides for meeting the
costs of transporting a person who has sustained an accident at work or is suffering
from an occupational disease, either to their place of residence or to a hospital, shall
meet such costs to the corresponding place in the State where the person resides,
provided that institution gives prior authorisation for such transport, duly taking into
account the reasons justifying it. Such authorisation shall not be required in the case
of a frontier worker.
(2) The competent institution of a State whose legislation provides for meeting the
costs of transporting the body of a person killed in an accident at work to the place
of burial shall, in accordance with the legislation it applies, meet such costs to the
corresponding place in the State where the person was residing at the time of the
accident.
ARTICLE 38
Benefits for an occupational disease where the person suffering from such a
disease has been exposed to the same risk in both States
When a person who has contracted an occupational disease has, under the legislation
of both States, pursued an activity which by its nature is likely to cause the said
disease, the benefits that that person or their survivors may claim shall be provided
exclusively under the legislation of the last of those States whose conditions are
satisfied.
ARTICLE 39
Aggravation of an occupational disease
In the event of aggravation of an occupational disease for which a person suffering
from such a disease has received or is receiving benefits under the legislation of a
State, the following rules shall apply:
(a) if the person concerned, while in receipt of benefits, has not pursued,
under the legislation of the other State, an activity as an employed or
self-employed person likely to cause or aggravate the disease in question,
the competent institution of the first State shall bear the cost of the
benefits under the legislation which it applies, taking into account the
aggravation;
(b) if the person concerned, while in receipt of benefits, has pursued such an
activity under the legislation of the other State, the competent institution
25
of the first State shall bear the cost of the benefits under the legislation it
applies without taking the aggravation into account. The competent
institution of the second State shall grant a supplement to the person
concerned, the amount of which shall be equal to the difference between
the amount of benefits due after the aggravation and the amount which
would have been due prior to the aggravation under the legislation it
applies, if the disease in question had occurred under the legislation of
that State;
(c) the rules concerning reduction, suspension or withdrawal laid down by
the legislation of a State shall not be invoked against persons receiving
benefits provided by institutions of both States in accordance with
paragraph (b).
ARTICLE 40
Rules for taking into account the special features of certain legislation
(1) If there is no insurance against accidents at work or occupational diseases in
the State in which the person concerned resides or stays, or if such insurance exists
but there is no institution responsible for providing benefits in kind, those benefits
shall be provided by the institution of the place of residence or stay responsible for
providing benefits in kind in the event of sickness.
(2) If there is no insurance against accidents at work or occupational diseases in
the competent State, the provisions of this Chapter concerning benefits in kind shall
nevertheless be applied to a person who is entitled to those benefits in the event of
sickness, maternity or equivalent paternity under the legislation of that State if that
person sustains an accident at work or suffers from an occupational disease during a
residence or stay in the other State. Costs shall be borne by the institution that is
competent for the benefits in kind under the legislation of the competent State.
(3) Article 9 applies to the competent institution in a State as regards the
equivalence of accidents at work and occupational diseases which either have
occurred or have been confirmed subsequently under the legislation of the other State
when assessing the degree of incapacity, the right to benefits or the amount thereof,
on condition that:
(a) no compensation is due in respect of an accident at work or an
occupational disease which had occurred or had been confirmed
previously under the legislation it applies; and
(b) no compensation is due in respect of an accident at work or an
occupational disease which had occurred or had been confirmed
subsequently, under the legislation of the other State under which the
accident at work or the occupational disease had occurred or been
confirmed.
26
ARTICLE 41
Reimbursements between institutions
(1) Article 35 applies to benefits falling within this Chapter, and reimbursement
shall be made on the basis of actual costs.
(2) The States, or their competent authorities, may provide for other methods of
reimbursement or waive all reimbursement between the institutions under their
jurisdiction.
CHAPTER 3
Death grants
ARTICLE 42
Right to grants where death occurs in, or where the person entitled resides in,
the State which is not the competent State
(1) When an insured person or a member of their family dies in the State which is
not the competent State, the death shall be deemed to have occurred in the competent
State.
(2) The competent institution shall be obliged to provide death grants payable
under the legislation it applies, even if the person entitled resides in the State which
is not the competent State.
(3) Paragraphs 1 and 2 shall also apply when the death is the result of an accident
at work or an occupational disease.
ARTICLE 43
Provision of benefits in the event of the death of a pensioner
(1) In the event of the death of a pensioner who was entitled to a pension under
the legislation of one State, or to pensions under the legislations of both States, when
that pensioner was residing in a State other than that of the institution responsible for
the cost of benefits in kind provided under Article 27, the death grants payable under
the legislation administered by that institution shall be provided at its own expense
as though the pensioner had been residing at the time of their death in the State in
which that institution is situated.
(2) Paragraph 1 applies mutatis mutandis to the members of the family of a
pensioner.
27
CHAPTER 4
Invalidity benefits
ARTICLE 44
Calculation of invalidity benefits
Without prejudice to Article 10, where, under the legislation of the State competent
under Title II of this Convention, the amount of invalidity benefits is dependent on
the duration of the periods of insurance, employment, self-employment or residence,
the competent State is not required to take into account any such periods completed
under the legislation of the other State for the purposes of calculating the amount of
invalidity benefit payable.
ARTICLE 45
Special provisions on aggregation of periods
The competent institution of a State whose legislation makes the acquisition,
retention or recovery of the right to benefits conditional upon the completion of
periods of insurance or residence shall, where necessary, apply Article 48 mutatis
mutandis.
ARTICLE 46
Conversion of invalidity benefits into old-age benefits
Where provided for in the legislation of the State paying invalidity benefit in
accordance with this Convention, invalidity benefits shall be converted into old-age
benefits under the conditions laid down by the legislation under which they are
provided and in accordance with Chapter 5.
CHAPTER 5
Old-age and survivors’ pensions
ARTICLE 47
General provisions
(1) The competent institutions shall determine entitlement to benefit, under the
legislations of the States to which the person concerned has been subject, when a
28
request for award has been submitted, unless the person concerned expressly requests
deferment of the award of old-age benefits under the legislation of one or both States.
(2) If at a given moment the person concerned does not satisfy, or no longer
satisfies, the conditions laid down by the legislations of the States to which that
person has been subject, the institutions applying legislation the conditions of which
have been satisfied shall not take into account, when performing the calculation in
accordance with points (a) or (b) of Article 49(1), the periods completed under the
legislations the conditions of which have not been satisfied, or are no longer satisfied,
where this gives rise to a lower amount of benefit.
(3) Paragraph 2 applies mutatis mutandis when the person concerned has expressly
requested deferment of the award of old-age benefits.
(4) A new calculation shall be performed automatically as and when the conditions
to be fulfilled under the other legislations are satisfied or when a person requests the
award of an old-age benefit deferred in accordance with paragraph 1, unless the
periods completed under the other legislations have already been taken into account
by virtue of paragraphs 2 or 3.
ARTICLE 48
Insurance when the risk materialises
Where the legislation or specific scheme of a State makes the acquisition, retention
or recovery of the right to benefits conditional upon the person concerned being
insured at the time of the materialisation of the risk, this condition shall be regarded
as having been satisfied if that person has been previously insured under the
legislation or specific scheme of that State and is, at the time of the materialisation
of the risk, insured under the legislation of the other State for the same risk or, failing
that, if a benefit is due under the legislation of the other State for the same risk. The
latter condition shall, however, be deemed to be fulfilled in the cases referred to in
Article 54.
ARTICLE 49
Award of benefits
(1) The competent institution shall calculate the amount of the benefit that would
be due:
(a) under the legislation it applies, only where the conditions for entitlement
to benefits have been satisfied exclusively under national law
(independent benefit);
29
(b) by calculating a theoretical amount and subsequently an actual amount
(pro rata benefit), as follows:
(i) the theoretical amount of the benefit is equal to the benefit which
the person concerned could claim if all the periods of insurance
and/or of residence which have been completed under the
legislation of the other State had been completed under the
legislation it applies on the date of the award of the benefit. If,
under this legislation, the amount does not depend on the duration
of the periods completed, that amount shall be regarded as being
the theoretical amount;
(ii) the competent institution shall then establish the actual amount of
the pro rata benefit by applying to the theoretical amount the ratio
between the duration of the periods completed before
materialisation of the risk under the legislation it applies and the
total duration of the periods completed before materialisation of
the risk under the legislations of both States concerned.
(2) Where appropriate, the competent institution shall apply, to the amount
calculated in accordance with points (a) and (b) of paragraph 1, all the rules relating
to reduction, suspension or withdrawal, under the legislation it applies, within the
limits provided for by Articles 50 to 52.
(3) The person concerned shall be entitled to receive from the competent
institution of each State the higher of the amounts calculated in accordance with
points (a) and (b) of paragraph 1.
(4) Where the calculation pursuant to point (a) of paragraph 1 in one State
invariably results in the independent benefit being equal to or higher than the pro rata
benefit, calculated in accordance with point (b) of paragraph 1, the competent
institution shall waive the pro rata calculation, provided that:
(a) such a situation is set out in Part 1 of Annex 3;
(b) no legislation containing rules against overlapping, as referred to in
Articles 50 and 52, is applicable unless the conditions laid down in
Article 52(2) are fulfilled; and
(c) Article 54 is not applicable in relation to periods completed under the
legislation of the other State in the specific circumstances of the case.
(5) Notwithstanding paragraphs 1, 2 and 3, the pro rata calculation shall not apply
to schemes providing benefits in respect of which periods of time are of no relevance
to the calculation, subject to such schemes being listed in Part 2 of Annex 3. In such
cases, the person concerned shall be entitled to the benefit calculated in accordance
with the legislation of the State concerned.
30
ARTICLE 50
Rules to prevent overlapping
(1) Any overlapping of old-age and survivors’ benefits calculated or provided on
the basis of periods of insurance or residence completed by the same person shall be
considered to be overlapping of benefits of the same kind.
(2) Overlapping of benefits which cannot be considered to be of the same kind
within the meaning of paragraph 1 shall be considered to be overlapping of benefits
of a different kind.
(3) The following provisions shall be applicable for the purposes of rules to
prevent overlapping laid down by the legislation of a State in the case of overlapping
of a benefit in respect of old-age or survivors with a benefit of the same kind or a
benefit of a different kind or with other income:
(a) the competent institution shall take into account the benefits or incomes
acquired in the other State only where the legislation it applies provides
for benefits or income acquired abroad to be taken into account;
(b) the competent institution shall take into account the amount of benefits
to be paid by the other State before deduction of tax, social security
contributions and other individual levies or deductions, unless the
legislation it applies provides for the application of rules to prevent
overlapping after such deductions, under the conditions and the
procedures laid down in Annex 1;
(c) the competent institution shall not take into account the amount of
benefits acquired under the legislation of the other State on the basis of
voluntary insurance or continued optional insurance;
(d) if a State applies rules to prevent overlapping because the person
concerned receives benefits of the same or of a different kind under the
legislation of the other State or income acquired in the other State, the
benefit due may be reduced solely by the amount of such benefits or such
income.
ARTICLE 51
Overlapping of benefits of the same kind
(1) Where benefits of the same kind due under the legislation of both States
overlap, the rules to prevent overlapping laid down by the legislation of either State
shall not be applicable to a pro rata benefit.
31
(2) The rules to prevent overlapping shall apply to an independent benefit only if
the benefit concerned is:
(a) a benefit the amount of which does not depend on the duration of periods
of insurance or residence; or
(b) a benefit the amount of which is determined on the basis of a credited
period deemed to have been completed between the date on which the
risk materialised and a later date, overlapping with:
(i) a benefit of the same type, except where an agreement has been
concluded between the States to avoid the same credited period
being taken into account more than once; or
(ii) a benefit referred to in point (a).
ARTICLE 52
Overlapping of benefits of a different kind
(1) If the receipt of benefits of a different kind or other income requires the
application of the rules to prevent overlapping provided for by the legislation of the
States concerned regarding:
(a) two or more independent benefits, the competent institutions shall divide
the amounts of the benefit or benefits or other income, as they have been
taken into account, by the number of benefits subject to the said rules;
however, the application of this subparagraph cannot deprive the person concerned
of their status as a pensioner for the purposes of the other chapters of this Title under
the conditions and the procedures laid down in Annex 1;
(b) one or more pro rata benefits, the competent institutions shall take into
account the benefit or benefits and/or other income and all the elements
stipulated for applying the rules to prevent overlapping as a function of
the ratio between the periods of insurance or residence established for
the calculation referred to in point (b)(ii) of Article 49(1);
(c) one or more independent benefits and one or more pro rata benefits, the
competent institutions shall apply mutatis mutandis point (a) as regards
independent benefits and point (b) as regards pro rata benefits.
(2) The competent institution shall not apply the division stipulated in respect of
independent benefits, if the legislation it applies provides for account to be taken of
benefits of a different kind or other income and all other elements for calculating part
of their amount determined as a function of the ratio between periods of insurance
or residence referred to in point (b)(ii) of Article 49(1).
32
(3) Paragraphs 1 and 2 shall apply mutatis mutandis where the legislation of either
or both States provides that a right to a benefit cannot be acquired in the case where
the person concerned is in receipt of a benefit of a different kind, payable under the
legislation of the other State, or of other income.
ARTICLE 53
Additional provisions for the calculation of benefits
(1) For the calculation of the theoretical and pro rata amounts referred to in point
(b) of Article 49(1), the following rules shall apply:
(a) where the total length of the periods of insurance and/or residence
completed before the risk materialised under the legislations of both
States is longer than the maximum period required by the legislation of
a State for receipt of full benefit, the competent institution of that State
shall take into account this maximum period instead of the total length
of the periods completed; this method of calculation shall not result in
the imposition on that institution of the cost of a benefit greater than the
full benefit provided for by the legislation it applies. This provision shall
not apply to benefits the amount of which does not depend on the length
of insurance;
(b) the procedure for taking into account overlapping periods is laid down in
Annex 1;
(c) if the legislation of a State provides that the benefits are to be calculated
on the basis of incomes, contributions, bases of contributions, increases,
earnings, other amounts or a combination of more than one of them
(average, proportional, fixed or credited), the competent institution shall:
(i) determine the basis for calculation of the benefits in accordance
only with periods of insurance completed under the legislation it
applies;
(ii) use, in order to determine the amount to be calculated in
accordance with the periods of insurance and/or residence
completed under the legislation of the other State, the same
elements determined or recorded for the periods of insurance
completed under the legislation it applies;
where necessary in accordance with the procedures laid down in Annex 4 for the
State concerned;
(d) in the event that point (c) is not applicable because the legislation of a
State provides for the benefit to be calculated on the basis of elements
other than periods of insurance and/or residence which are not linked to
33
time, the competent institution shall take into account, in respect of each
period of insurance and/or residence completed under the legislation of
the other State, the amount of the capital accrued, the capital which is
considered as having been accrued or any other element for the
calculation under the legislation it administers divided by the
corresponding units of periods in the pension scheme concerned.
(2) The provisions of the legislation of a State concerning the revalorisation of the
elements taken into account for the calculation of benefits shall apply, as appropriate,
to the elements to be taken into account by the competent institution of that State, in
accordance with paragraph 1, in respect of the periods of insurance and/or residence
completed under the legislation of the other State.
ARTICLE 54
Periods of insurance or residence of less than one year
(1) Notwithstanding point (b) of Article 49(1), the institution of either State shall
not be required to provide benefits in respect of periods completed under the
legislation it applies which are taken into account when the risk materialises, if:
(a) the duration of the said periods is less than one year, and
(b) taking only these periods into account no right to benefit is acquired
under that legislation.
For the purposes of this Article, ‘periods’ shall mean all periods of insurance, employment, self-employment or residence which either qualify for, or directly
increase, the benefit concerned.
(2) The competent institution of each of the States concerned shall take into
account the periods referred to in paragraph 1, for the purposes of point (b)(i) of
Article 49(1).
(3) This Article shall not apply to schemes listed in Part 2 of Annex 3.
ARTICLE 55
Recalculation and revaluation of benefits
(1) If the method for determining benefits or the rules for calculating benefits are
altered under the legislation of a State, or if the personal situation of the person
concerned undergoes a relevant change which, under that legislation, would lead to
an adjustment of the amount of the benefit, a recalculation shall be carried out in
accordance with Article 49.
34
(2) On the other hand, if, by reason of an increase in the cost of living or changes
in the level of income or other grounds for adjustment, the benefits of the State
concerned are altered by a percentage or fixed amount, such percentage or fixed
amount shall be applied directly to the benefits determined in accordance with
Article 49, without the need for a recalculation.
CHAPTER 6
Unemployment benefits
ARTICLE 56
Special rules on aggregation of periods of insurance, employment or self-
employment
(1) The competent institution of a State whose legislation makes the acquisition,
retention, recovery or duration of the right to benefits conditional upon the
completion of either periods of insurance, employment or self-employment shall, to
the extent necessary, take into account periods of insurance, employment or self-
employment completed under the legislation of the other State as though they were
completed under the legislation it applies.
However, when the applicable legislation makes the right to benefits conditional on
the completion of periods of insurance, the periods of employment or self-
employment completed under the legislation of the other State shall not be taken into
account unless such periods would have been considered to be periods of insurance
had they been completed in accordance with the applicable legislation.
(2) The application of paragraph 1 of this Article shall be conditional on the person
concerned having the most recently completed, in accordance with the legislation
under which the benefits are claimed:
(a) periods of insurance, if that legislation requires periods of insurance,
(b) periods of employment, if that legislation requires periods of
employment, or
(c) periods of self-employment, if that legislation requires periods of self-
employment.
ARTICLE 57
Calculation of unemployment benefits
(1) Where the calculation of unemployment benefits is based on the amount of the
previous salary or professional income of the person concerned, the competent State
35
shall take into account the salary or professional income received by the person
concerned based exclusively on their last activity as an employed or self-employed
person under the legislation of the competent State.
(2) Where the legislation applied by the competent State provides for a specific
reference period for the determination of the salary or professional income used to
calculate the amount of benefit, and the person concerned was subject to the
legislation of the other State for all or part of that reference period, the competent
State shall only take into account the salary or professional income received during
their last activity as an employed or self-employed person under that legislation.
TITLE IV
MISCELLANEOUS PROVISIONS
ARTICLE 58
Cooperation
(1) The competent authorities of the States shall notify the Joint Administrative
Committee of any changes to their legislation concerning the branches of social
security covered by Article 6(1) which are relevant to or may affect the
implementation of this Convention.
(2) The competent authorities of the States shall communicate to each other
measures taken to implement this Convention that are not notified under paragraph
1.
(3) For the purposes of this Convention, the authorities and institutions of the
States shall lend one another their good offices and act as though implementing their
own legislation. The administrative assistance given by those authorities and
institutions shall, as a rule, be free of charge. However, the Joint Administrative
Committee shall establish the nature of reimbursable expenses and the limits above
which their reimbursement is due.
(4) The authorities and institutions of the States may, for the purposes of this
Convention, communicate directly with one another and with the persons involved
or their representatives.
(5) The institutions and persons covered by this Convention shall have a duty of
mutual information and cooperation to ensure the correct implementation of this
Convention.
The institutions, in accordance with the principle of good administration, shall
respond to all queries within a reasonable period of time and shall in this connection
provide the persons concerned with any information required for exercising the
rights conferred on them by this Convention.
36
The persons concerned must inform the institutions of the competent State and of the
State of residence as soon as possible of any change in their personal or family
situation which affects their right to benefits under this Convention.
(6) Failure to respect the obligation of information referred to in the third
subparagraph of paragraph 5 may result in the application of proportionate measures
in accordance with national law. Nevertheless, these measures shall be equivalent to
those applicable to similar situations under domestic law and shall not make it
impossible or excessively difficult in practice for claimants to exercise the rights
conferred on them by this Convention.
(7) The authorities, institutions and tribunals of one State may not reject
applications or other documents submitted to them on the grounds that they are
written in an official language of the States.
ARTICLE 59
Preventing and combatting fraud and error
(1) The States, through their competent authorities, undertake to prevent and
combat fraud and error in respect of contributions or benefits due under this
Convention.
(2) For the purpose of preventing and combatting fraud and error the liaison bodies
of the States may share information, which may include the dates of death of the
beneficiaries of a pension or benefit paid in accordance with the legislation of one
State and who reside in the territory of the other State.
ARTICLE 60
Protection of personal data
(1) Any personal data received under this Convention shall be protected as such in
accordance with the receiving State’s domestic law.
(2) Any personal data received under this Convention shall be used solely for the
purposes of this Convention and in accordance with the domestic law of the receiving
State.
(3) Where one of the States wishes to use such personal data for other purposes, it
shall obtain, in conformity with the domestic law of the State which provided the
personal data, the prior written consent of the competent authorities or competent
institutions. S uch use shall be subject to any restrictions laid down by that authority
or institution.
37
(4) Where this Convention provides for the transfer of personal data, such transfer
shall take place in accordance with the transferring State’s rules on international
transfers of personal data. Where needed, each State will make best efforts, while
respecting the transferring State’s rules on international transfers of personal data, to establish safeguards necessary for the transfer of personal data.
ARTICLE 61
Confidentiality
(1) Any information communicated pursuant to this Convention shall be covered
by an obligation of professional secrecy and shall enjoy the protections available to
similar information subject to those obligations under the domestic law of the
receiving State, unless the State which provided the information gives, in conformity
with its domestic law, its consent to the disclosure of such information.
(2) Any information subject to an obligation of professional secrecy that is
received under this Convention shall be used solely for the purposes of this
Convention and in accordance with the domestic law of the receiving State.
(3) Where one of the States wishes to use such information for other purposes, it
shall obtain, in conformity with the domestic law of the State which provided the
information, the prior written consent of the competent authorities or competent
institutions. S uch use shall be subject to any restrictions laid down by that authority
or institution.
ARTICLE 62
Data processing
(1) The States shall progressively use new technologies for the exchange, access
and processing of the data required to apply this Convention.
(2) Each State shall be responsible for managing its own part of any system of
electronic exchange of information.
(3) An electronic document sent or issued by an institution in conformity with this
Convention may not be rejected by any authority or institution of the other State on
the grounds that it was received by electronic means, once the receiving institution
has declared that it can receive electronic documents. Reproduction and recording of
such documents shall be presumed to be a correct and accurate reproduction of the
original document or representation of the information it relates to, unless there is
proof to the contrary.
(4) An electronic document shall be considered valid if the computer system on
which the document is recorded contains the safeguards necessary in order to prevent
38
any alteration, disclosure or unauthorised access to the recording. It shall at any time
be possible to reproduce the recorded information in an immediately readable form.
ARTICLE 63
Exemptions
(1) Any exemption from or reduction of taxes, stamp duty, notarial or registration
fees provided for under the legislation of one State in respect of certificates or
documents required to be produced in application of the legislation of that State shall
be extended to similar certificates or documents required to be produced in
application of the legislation of the other State or of this Convention.
(2) All statements, documents and certificates of any kind whatsoever required to
be produced in application of this Convention shall be exempt from authentication
by diplomatic or consular authorities.
ARTICLE 64
Claims, declarations or appeals
Any claim, declaration or appeal which should have been submitted, in application
of the legislation of one State, within a specified period to an authority, institution or
tribunal of that State shall be admissible if it is submitted within the same period to
a corresponding authority, institution or tribunal of the other State. In such a case,
the authority, institution or tribunal receiving the claim, declaration or appeal shall
forward it without delay to the competent authority, institution or tribunal of the
former State either directly or through the competent authorities of the State
concerned. The date on which such claims, declarations or appeals were submitted
to the authority, institution or tribunal of the second State shall be considered as the
date of their submission to the competent authority, institution or tribunal.
ARTICLE 65
Medical examinations
(1) Medical examinations provided for by the legislation of one State may be
carried out, at the request of the competent institution, in the territory of the other
State, by the institution of the place of stay or residence of the person entitled to
benefits, under the conditions laid down in Annex 1 or agreed between the competent
authorities of the States.
(2) Medical examinations carried out under the conditions laid down in paragraph
1 shall be considered as having been carried out in the territory of the competent
State.
39
ARTICLE 66
Collection of contributions and recovery of benefits
(1) Collection of contributions due to a State and recovery of benefits provided by
a State but not due may be effected in the other State in accordance with the
procedures and with the guarantees and privileges applicable to the collection of
contributions due to the corresponding institution of the latter State and the recovery
of benefits provided by it but not due.
(2) Enforceable decisions of the judicial and administrative authorities relating to
the collection of contributions, interest and any other charges or to the recovery of
benefits provided but not due under the legislation of one State shall be recognised
and enforced at the request of the other State within the limits and in accordance with
the laws and procedures applicable to similar decisions of the latter State concerning
the collection of contributions and the recovery of benefits. Such decisions shall be
declared enforceable in that State insofar as the legislation and any other procedures
of that State so require.
(3) Claims of an institution of one State shall in enforcement, bankruptcy or
settlement proceedings in the other State enjoy the same privileges as the legislation
of the latter accords to claims of the same kind.
(4) The procedure for implementing this Article, including costs reimbursement,
shall be governed by Annex 1 or, where necessary and as a complementary measure,
by means of agreements between the States.
ARTICLE 67
Rights of institutions
(1) If a person receives benefits under the legislation of a State in respect of an
injury resulting from events occurring in the other State, any rights of the institution
responsible for providing benefits against a third party liable to provide
compensation for the injury shall be governed by the following rules:
(a) where the institution responsible for providing benefits is, under the
legislation it applies, subrogated to the rights which the beneficiary has
against the third party, such subrogation shall be recognised by each
State;
(b) where the institution responsible for providing benefits has a direct right
against the third party, each State shall recognise such rights.
(2) If a person receives benefits under the legislation of one State in respect of an
injury resulting from events occurring in the other State, the said legislation which
determines the cases in which the civil liability of employers or of their employees
40
is to be excluded shall apply with regard to the said person or to the competent
institution.
Paragraph 1 shall also apply to any rights of the institution responsible for providing
benefits against employers or their employees in cases where their liability is not
excluded.
(3) Where, in accordance with Articles 35(3) or 41(2), the States or their
competent authorities have concluded an agreement to waive reimbursement
between institutions under their jurisdiction, or, where reimbursement does not
depend on the amount of benefits actually provided, any rights arising against a liable
third party shall be governed by the following rules:
(a) where the institution of the State of residence or stay grants benefits to a
person in respect of an injury sustained in its territory, that institution, in
accordance with the provisions of the legislation it applies, shall exercise
the right to subrogation or direct action against the third party liable to
provide compensation for the injury;
(b) for the application of point (a):
(i) the person receiving benefits shall be deemed to be insured with
the institution of the place of residence or stay, and
(ii) that institution shall be deemed to be the institution responsible for
providing benefits;
(c) paragraphs 1 and 2 shall remain applicable in respect of any benefits not
covered by the waiver agreement or a reimbursement which does not
depend on the amount of benefits actually provided.
ARTICLE 68
Implementation of legislation
Special provisions for implementing the legislation of a State are referred to in Annex
4.
ARTICLE 69
Establishment and role of the Joint Administrative Committee
(1) The competent authorities of the States shall establish a joint committee to be
called the Joint Administrative Committee. The Joint Administrative Committee
shall comprise representatives of each State. It shall be co-chaired by a representative
of each State.
41
(2) The Joint Administrative Committee may:
(a) monitor and review the interpretation, implementation and application of
this Convention and make recommendations in respect thereof;
(b) agree administrative arrangements necessary for the application of this
Convention;
(c) provide a forum for the States to exchange information, and discuss best
practices and technical issues;
(d) provide a forum for the States to seek to resolve disputes in accordance
with Article 70(2).
(3) The Joint Administrative Committee may adopt decisions in respect of all
matters where this Convention so provides.
(4) The Joint Administrative Committee may, when carrying out its functions,
consider guidance issued in relation to other international social security agreements
by which either of the States is bound.
(5) The Joint Administrative Committee shall meet at the request of either State,
and, in any event, at least once a year unless the co-chairs decide otherwise. The co-
chairs shall set the Joint Administrative Committee’s meeting schedule and agenda
by mutual consent.
(6) The co-chairs may set rules of procedure for the Joint Administrative
Committee.
ARTICLE 70
Dispute resolution
(1) The States shall make all reasonable efforts to resolve between them all
disputes concerning this Convention.
(2) If a dispute cannot be resolved in accordance with paragraph 1 it shall be
submitted for discussion at the Joint Administrative Committee in accordance with
Article 69(2)(d).
(3) If a dispute cannot be resolved following discussion at the Joint Administrative
Committee in accordance with paragraph 2, it shall be submitted, at the request of
either State, to an arbitration tribunal which shall be constituted in the following
manner:
(a) each State shall appoint an arbitrator within one month from receipt of
the demand for arbitration. The two arbitrators shall appoint a third
42
arbitrator, who shall not be a national of either State, within two months
from the date on which the State which was the last to appoint its
arbitrator has notified the other State of the appointment;
(b) if within the prescribed period either State should fail to appoint an
arbitrator, the other State may request the President of the International
Court of Justice or, in the event of their having the nationality of one of
the States, the Vice-President or next senior judge of that Court not
having the nationality of either State, to make the appointment. A similar
procedure shall be adopted at the request of either State if the two
arbitrators cannot agree on the appointment of the third arbitrator.
(4) The arbitration tribunal shall decide the matter by majority vote and this
decision shall be binding on both States. The arbitration tribunal shall determine its
own rules of procedure, and its costs shall be agreed with both States and borne
equally by them.
ARTICLE 71
Annexes
The Annexes (including any appendices) shall form integral parts of this Convention.
TITLE V
TRANSITIONAL AND FINAL PROVISIONS
ARTICLE 72
Entry into force
This Convention shall enter into force on the first day of the third month following
the date of receipt of the later of the States’ written notifications that they have
complied with all statutory and constitutional requirements for the entry into force
of this Convention.
ARTICLE 73
Provisional application
(1) Pending its entry into force, the States may agree to provisionally apply this
Convention by an exchange of notes through diplomatic channels. Provisional
application shall take effect on the day following the later of the States’ notes.
43
(2) Either State may terminate the provisional application of this Convention by
giving written notice to the other State. Such termination shall take effect on the first
day of the second month following notification.
(3) Where this Convention is provisionally applied, the term “entry into force of
this Convention” in any provisionally applied provisions shall be deemed to refer to the date that such provisional application takes effect.
ARTICLE 74
Termination of this Convention
Subject to Article 75, this Convention shall remain in force until the expiration of 12
months from the date on which either State receives from the other written notice
through diplomatic channels of the intention of the other State to terminate this
Convention.
ARTICLE 75
Post-termination arrangements
(1) In the event that this Convention is terminated in accordance with Article 74,
rights to cash benefits acquired by a person in accordance with the provisions of this
Convention shall be maintained, if:
(a) at the date of termination, they are in receipt of those cash benefits;
(b) at or prior to the date of termination, they have lodged a claim for, and
would be entitled to receive, those cash benefits; or
(c) the only reason they are not entitled to receive those cash benefits is that
they have not lodged a claim for them at or prior to the date of
termination.
(2) Prior to the expiry of the period referred to in Article 74, and without prejudice
to the protections in paragraph 1, the States shall commence discussions on
appropriate consequential and transitional arrangements for the protection of persons
affected by the termination of this Convention.
ARTICLE 76
Transitional provision
(1) No provision of this Convention shall confer any right to receive a benefit for
any period before the date of entry into force of this Convention.
44
(2) The following shall also be taken into consideration in determining the right to
benefits under this Convention:
(i) any period of insurance, and, where appropriate, any period of
employment, self-employment or residence completed under the
legislation of the States before the date of entry into force of this
Convention; and
(ii) insured events occurring before the date of entry into force of this
Convention.
(3) This Convention shall not apply to rights extinguished by the payment of a
lump-sum payment.
ARTICLE 77
Relationship with the 1968 Convention
(1) The 1968 Convention between the United Kingdom of Great Britain and
Northern Ireland and Switzerland (the “1968 Convention”) shall continue to apply
to the Isle of Man, Jersey, Guernsey, Alderney, Herm and Jethou.
(2) The 1968 Convention shall, from the date of entry into force of this
Convention, cease to apply to England, Scotland, Wales and Northern Ireland,
subject to paragraph 3.
(3) The provisions of the 1968 Convention shall continue to apply in relation to:
(a) any award of benefit, pension or allowance made prior to the date in
paragraph 2;
(b) any claim to a benefit, pension or allowance made but not determined at
the date in paragraph 2;
(c) any claim to a benefit, pension or allowance made after the date in
paragraph 2 but only where that claim relates to entitlement to such
benefit, pension or allowance for a period prior to that date.
45
In witness whereof the undersigned, duly authorised by their respective
Governments, have signed this Convention.
Done in duplicate at London on 9th September 2021 in the English and German
languages, each text being equally authentic.
For the United Kingdom of Great For the Swiss Confederation:
Britain and Northern Ireland:
NIGEL ADAMS ALAIN BERSET
46
ANNEX 1: IMPLEMENTING PART
TITLE I: GENERAL PROVISIONS
CHAPTER 1
ARTICLE 1
Definitions
For the purposes of this Annex the following definitions, in addition to those
contained in Article 1 of this Convention, apply:
(a) “Administrative arrangements” means the arrangements necessary for the application of this Convention agreed from time to time by the Joint
Administrative Committee under Article 69(2)(b) of this Convention;
(b) “document” means a set of data, irrespective of the medium used,
structured in such a way that it can be exchanged electronically and
which must be communicated in order to enable the operation of this
Convention;
(c) “Joint Administrative Committee” means the committee established
under Article 69 of this Convention;
(d) “transmission by electronic means” means the transmission of data using electronic equipment for the processing (including digital compression)
of data and employing wires, radio transmission, optical technologies or
any other electromagnetic means.
CHAPTER 2
PROVISIONS CONCERNING COOPERATION AND EXCHANGES OF
DATA
ARTICLE 2
Scope and rules for exchanges between institutions
(1) For the purposes of this Annex, exchanges between authorities of the States
and institutions and persons covered by this Convention shall be based on the
principles of public service, efficiency, active assistance, rapid delivery and
accessibility, including e-accessibility, in particular for the disabled and the elderly.
(2) The institutions shall without delay provide or exchange all data necessary for
establishing and determining the rights and obligations of persons to whom this
47
Convention applies. Such data shall be transferred between the States directly by the
institutions themselves or indirectly via the liaison bodies.
(3) Where a person has mistakenly submitted information, documents or claims to
an institution in the territory of a State other than that in which the institution
designated in accordance with this Annex is situated, the information, documents or
claims shall be resubmitted without delay by the former institution to the institution
of the other State designated in accordance with this Annex, indicating the date on
which they were initially submitted. That date shall be binding on the latter
institution. The institutions of the States shall not, however, be held liable, or be
deemed to have taken a decision by virtue of their failure to act as a result of the late
transmission of information, documents or claims by States’ institutions.
(4) Where data are transferred indirectly via the liaison body of the State of
destination, time limits for responding to claims shall start from the date when that
liaison body received the claim, as if it had been received by the institution in that
State.
ARTICLE 3
Scope and rules for exchanges between the persons concerned and institutions
(1) The States shall ensure that the necessary information is made available to the
persons concerned in order to inform them of the provisions introduced by this
Convention and this Annex to enable them to assert their rights. They shall also
provide for user-friendly services.
(2) Persons to whom this Convention applies shall be required to forward to the
relevant institution the information, documents or supporting evidence necessary to
establish their situation or that of their families, to establish or maintain their rights
and obligations and to determine the applicable legislation and their obligations
under it.
(3) To the extent necessary for the application of this Convention and this Annex,
the relevant institutions shall forward the information and issue the documents to the
persons concerned without delay and in all cases within any time limits specified
under the legislation of the State in question.
(4) The relevant institution shall notify the claimant residing or staying in the other
State of its decision directly or through the liaison body of the State of residence or
stay. When refusing the benefits, it shall also indicate the reasons for refusal, the
remedies and periods allowed for appeals. A copy of this decision shall be sent to
other involved institutions.
48
ARTICLE 4
Forms, documents and methods of exchanging data
(1) Subject to Appendix 1, the structure, content and format of forms and
documents issued on behalf of the States for the purposes of implementing this
Convention shall be agreed by the States through the Joint Administrative
Committee.
(2) The transmission of data between the institutions or the liaison bodies may,
subject to the approval of the States through the Joint Administrative Committee, be
carried out by way of electronic exchange. To the extent the forms and documents
referred to in paragraph 1 are transmitted by electronic exchange, they shall respect
the rules applicable to that system.
(3) Where the transmission of data between institutions or the liaison bodies is not
carried out by way of electronic exchange, the relevant institutions and liaison bodies
shall use the arrangements appropriate to each case, and favour the use of electronic
means as far as possible.
(4) In their communications with the persons concerned, the relevant institutions
shall use the arrangements appropriate to each case, and favour the use of electronic
means as far as possible.
ARTICLE 5
Legal value of documents and supporting evidence issued in the other State
(1) Documents issued by the institution of one State and showing the position of a
person for the purposes of the application of this Convention and this Annex, and
supporting evidence on the basis of which the documents have been issued, shall be
accepted by the institutions of the other State for as long as they have not been
withdrawn or declared to be invalid by the issuing State.
(2) Where there is doubt about the validity of a document or the accuracy of the
facts on which the particulars contained therein are based, the institution of the State
that receives the document shall ask the issuing institution for the necessary
clarification and, where appropriate, the withdrawal of that document. The issuing
institution shall reconsider the grounds for issuing the document and, if necessary,
withdraw it.
(3) Pursuant to paragraph 2, where there is doubt about the information provided
by the persons concerned, the validity of a document or supporting evidence or the
accuracy of the facts on which the particulars contained therein are based, the
institution of the place of stay or residence shall, insofar as this is possible, at the
request of the competent institution, proceed to the necessary verification of this
information or document.
49
(4) Where no agreement is reached between the institutions concerned, the matter
may be referred to the Joint Administrative Committee by the competent authorities
of either State.
ARTICLE 6
Provisional application of legislation, granting of benefits and calculation of
benefits and contributions
(1) Unless otherwise provided for in this Annex, where there is a difference of
views between the institutions or authorities of the States concerning the
determination of the applicable legislation, the person concerned shall be made
provisionally subject to the legislation of one State, the order of priority being
determined as follows:
(a) the legislation of the State where the person actually pursues their
employment or self-employment, if the employment or self-employment
is pursued in only one of the States;
(b) the legislation of the State of residence if the person concerned pursues
employment or self-employment in both States, or if the person
concerned is neither employed nor self-employed;
(c) in all other cases, the legislation of the State the application of which was
first requested if the person pursues an activity, or activities, in both
States.
(2) Where there is a difference of views between the institutions or authorities of
the States about which institution should provide the benefits in cash or in kind, the
person concerned who could claim benefits if there was no dispute shall be entitled,
on a provisional basis, to the benefits provided for by the legislation applied by the
institution of that person’s place of residence or, if that person does not reside on the territory of one of the States concerned, to the benefits provided for by the legislation
applied by the institution to which the request was first submitted.
(3) Where no agreement is reached between the institutions or authorities
concerned, the matter may be referred to the Joint Administrative Committee by the
competent authorities of either State.
(4) Where it is established either that the applicable legislation is not that of the
State of provisional membership, or the institution which granted the benefits on a
provisional basis was not the competent institution, the institution identified as being
competent shall be deemed retroactively to have been so, as if that difference of
views had not existed, at the latest from either the date of provisional membership or
of the first provisional granting of the benefits concerned.
50
(5) If necessary, the institution identified as being competent and the institution
which provisionally paid the cash benefits or provisionally received contributions
shall settle the financial situation of the person concerned as regards contributions
and cash benefits paid provisionally, where appropriate, in accordance with Title IV,
Chapter 2 of this Annex.
(6) Benefits in kind granted provisionally by an institution in accordance with
paragraph 2 shall be reimbursed by the competent institution in accordance with Title
IV of this Annex.
(7) Unless otherwise provided for in this Annex, where a person is eligible for a
benefit, or is liable to pay a contribution in accordance with this Convention, and the
competent institution does not have all the information concerning the situation in
the other State which is necessary to calculate definitively the amount of that benefit
or contribution, that institution may award this benefit or calculate this contribution
on a provisional basis, if such a calculation is possible on the basis of the information
at the disposal of that institution.
(8) The benefit or the contribution concerned shall be recalculated once all the
necessary supporting evidence or documents are provided to the institution
concerned.
ARTICLE 7
Periods of insurance or residence
(1) Where the only reason that a period of insurance, employment, self-
employment or residence would not be considered to be such a period for the
purposes of this Convention is the fact that a person does not fall within the scope of
this Convention, as applied by Switzerland under Article 2(1) of this Convention, by
virtue of their nationality, that period will be considered as such for the application
of this Convention by the United Kingdom in relation to benefits other than benefits
in kind.
(2) This Article also applies to such periods completed by members of the family
of a person who does not fall within the scope of this Convention, as applied by
Switzerland under Article 2(1) of this Convention, by virtue of their nationality.
51
CHAPTER 3
OTHER GENERAL PROVISIONS FOR THE APPLICATION OF THIS
CONVENTION
ARTICLE 8
Other procedures between authorities and institutions
(1) The competent authorities of the States may agree procedures other than those
provided for by this Annex, provided that such procedures do not adversely affect
the rights or obligations of the persons concerned.
(2) Any agreements concluded to this end shall be agreed by the States through
the Joint Administrative Committee.
ARTICLE 9
Prevention of overlapping of benefits
Notwithstanding other provisions in this Convention, when benefits due under the
legislation of the States are mutually reduced, suspended or withdrawn, any amounts
that would not be paid in the event of strict application of the rules concerning
reduction, suspension or withdrawal laid down by the legislation of the State
concerned shall be divided by the number of benefits subjected to reduction,
suspension or withdrawal.
ARTICLE 10
Elements for determining residence
(1) Where there is a difference of views between the institutions of the States about
the determination of the residence of a person to whom this Convention applies, these
institutions shall establish by common agreement the centre of interests of the person
concerned, based on an overall assessment of all available information relating to
relevant facts, which may include, as appropriate:
(a) the duration and continuity of presence in the territory of the States;
(b) that person’s situation, including:
(i) the nature and the specific characteristics of any activity pursued,
in particular the place where such activity is habitually pursued,
the stability of the activity, and the duration of any work contract;
(ii) that person’s family status and family ties;
52
(iii) the exercise of any non-remunerated activity;
(iv) in the case of students, the source of that student’s income;
(v) that person’s housing situation, in particular how permanent it is;
(vi) the State in which that person is deemed to reside for taxation
purposes.
(2) Where the consideration of the various criteria based on relevant facts as set
out in paragraph 1 does not lead to agreement between the institutions concerned,
the person’s intention, as it appears from such facts and circumstances, especially
the reasons that led the person to move, shall be considered to be decisive for
establishing that person’s actual place of residence.
(3) The centre of interest of a student who goes to the other State to pursue a full-
time course of study shall not be considered as being in the State of study for the
entire duration of the course of study in that State, without prejudice to the possibility
of rebutting this presumption.
(4) Paragraph 3 applies mutatis mutandis to the family members of the student.
ARTICLE 11
Aggregation of periods
(1) For the purposes of applying Article 10 of this Convention the competent
institution shall contact the institutions of the other State to whose legislation the
person concerned has also been subject in order to determine all the periods
completed under their legislation.
(2) The respective periods of insurance, employment, self-employment or
residence completed under the legislation of a State shall be added to those
completed under the legislation of the other State, insofar as necessary for the
purposes of applying Article 10 of this Convention, provided that these periods do
not overlap.
(3) Where a period of insurance or residence which is completed in accordance
with compulsory insurance under the legislation of a State coincides with a period of
insurance completed on the basis of voluntary insurance or continued optional
insurance under the legislation of the other State, only the period completed on the
basis of compulsory insurance shall be taken into account.
(4) Where a period of insurance or residence other than an equivalent period
completed under the legislation of a State coincides with an equivalent period on the
basis of the legislation of the other State, only the period other than an equivalent
period shall be taken into account.
53
(5) Any period regarded as equivalent under the legislation of both States shall be
taken into account only by the institution of the State to whose legislation the person
concerned was last compulsorily subject before that period. In the event that the
person concerned was not compulsorily subject to the legislation of either State
before that period, the latter shall be taken into account by the institution of the State
to whose legislation the person concerned was compulsorily subject for the first time
after that period.
(6) In the event that the time in which certain periods of insurance or residence
were completed under the legislation of one State cannot be determined precisely, it
shall be presumed that these periods do not overlap with periods of insurance or
residence completed under the legislation of the other State, and account shall be
taken thereof, where advantageous to the person concerned, insofar as they can
reasonably be taken into consideration.
ARTICLE 12
Rules for conversion of periods
(1) Where periods completed under the legislation of one State are expressed in
units different from those provided for by the legislation of the other State, the
conversion needed for the purpose of aggregation under Article 10 of this
Convention shall be carried out under the following rules:
(a) the period to be used as the basis for the conversion shall be that
communicated by the institution of the State under whose legislation the
period was completed;
(b) in the case of schemes where the periods are expressed in days the
conversion from days to other units, and vice versa, as well as between
different schemes based on days shall be calculated according to the
following table:
Scheme
based on
1 day
corresponds
to
1 week
corresponds
to
1 month
corresponds
to
1 quarter
corresponds
to
Maximum of
days in one
calendar year
5 days 9 hours 5 days 22 days 66 days 264 days
6 days 8 hours 6 days 26 days 78 days 312 days
7 days 6 hours 7 days 30 days 90 days 360 days
(c) in the case of schemes where the periods are expressed in units other than
days,
(i) three months or 13 weeks shall be equivalent to one quarter, and
vice versa;
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(ii) one year shall be equivalent to four quarters, 12 months or 52
weeks, and vice versa;
(iii) for the conversion of weeks into months, and vice versa, weeks and
months shall be converted into days in accordance with the
conversion rules for the schemes based on six days in the table in
point (b);
(d) in the case of periods expressed in fractions, those figures shall be
converted into the next smaller integer unit applying the rules laid down
in points (b) and (c). Fractions of years shall be converted into months
unless the scheme involved is based on quarters;
(e) if the conversion under this paragraph results in a fraction of a unit, the
next higher integer unit shall be taken as the result of the conversion
under this paragraph.
(2) The application of paragraph 1 shall not have the effect of producing, for the
total sum of the periods completed during one calendar year, a total exceeding the
number of days indicated in the last column in the table in point (b) of paragraph 1,
52 weeks, 12 months or four quarters.
If the periods to be converted correspond to the maximum annual amount of periods
under the legislation of the State in which they have been completed, the application
of paragraph 1 shall not result within one calendar year in periods that are shorter
than the possible maximum annual amount of periods provided under the legislation
concerned.
(3) The conversion shall be carried out either in one single operation covering all
those periods which were communicated as an aggregate, or for each year, if the
periods were communicated on a year-by-year basis.
(4) Where an institution communicates periods expressed in days, it shall at the
same time indicate whether the scheme it administers is based on five days, six days
or seven days.
TITLE II DETERMINATION OF THE LEGISLATION APPLICABLE
ARTICLE 13
Details relating to Articles 14 and 15 of this Convention
(1) For the purposes of the application of Article 14 (1) of this Convention, a
‘person who pursues an activity as an employed person in a State for an employer
which normally carries out its activities there and who is sent by that employer to
the other State’ shall:
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(a) include a person who is recruited with a view to being sent to the other
State, provided that, immediately before the start of that person’s employment, the person concerned is already subject to the legislation of
the State in which their employer is established;
(b) have been subject to the legislation of the State in which their employer
is established for a prior minimum period of time. The prior minimum
period shall be agreed by the Joint Administrative Committee.
(2) For the purposes of the application of Article 14(1) of this Convention, the
words ‘which normally carries out its activities there’ shall refer to an employer that
ordinarily performs substantial activities, other than purely internal management
activities, in the territory of the State in which it is established, taking account of all
criteria characterising the activities carried out by the undertaking in question. The
relevant criteria must be suited to the specific characteristics of each employer and
the real nature of the activities carried out.
(3) For the purposes of the application of Article 14(2) of this Convention, the
words ‘who normally pursues an activity as a self-employed person’ shall refer to a
person who habitually carries out substantial activities in the territory of the State in
which that person is established. In particular, that person must have already pursued
their activity for a minimum period of time before the date when they wish to take
advantage of the provisions of that Article and, during any period of temporary
activity in the other State, must continue to fulfil, in the State where they are
established, the requirements for the pursuit of their activity in order to be able to
pursue it on their return.
The minimum period of time that person must have already pursued their activity
shall be agreed by the Joint Administrative Committee.
(4) For the purposes of the application of Article 14(2) of this Convention, the
criterion for determining whether the activity that a self-employed person goes to
pursue in the other State is ‘similar’ to the self-employed activity normally pursued
shall be that of the actual nature of the activity, rather than of the designation of
employed or self-employed activity that may be given to this activity by the other
State.
(5) For the purposes of the application of Article 15 of this Convention, a person
who ‘normally pursues an activity as an employed person in both States’ shall refer to a person who simultaneously, or in alternation, for the same undertaking or
employer or for various undertakings or employers, exercises one or more separate
activities in both States.
(6) For the purposes of Article 15 of this Convention, an employed flight crew or
cabin crew member normally pursuing air passenger or freight services in both States
shall be subject to the legislation of the State where the home base, as defined in
Article 1 of this Convention, is located.
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(7) Marginal activities shall be disregarded for the purposes of determining the
applicable legislation under Article 15 of this Convention. Article 15 of this Annex
shall apply to all cases under this Article.
(8) For the purposes of the application of Article 15(3) of this Convention, a person
who ‘normally pursues an activity as a self-employed person in both States’, shall refer, in particular, to a person who simultaneously or in alternation pursues one or
more separate self-employed activities, irrespective of the nature of those activities,
in such States.
(9) For the purposes of distinguishing the activities under paragraphs 5 and 8 from
the situations described in Article 14(1) of this Convention, the duration of the
activity in one or both States (whether it is permanent or of an ad hoc or temporary
nature) shall be decisive. For these purposes, an overall assessment shall be made of
all the relevant facts including, in particular, in the case of an employed person, the
place of work as defined in the employment contract.
(10) For the purposes of the application of Article 15(1) and (3) of this Convention,
a ‘substantial part of employed or self-employed activity’ pursued in a State shall mean a quantitatively substantial part of all the activities of the employed or self-
employed person pursued there, without this necessarily being the major part of those
activities.
(11) To determine whether a substantial part of the activities is pursued in a State,
the following indicative criteria shall be taken into account:
(a) in the case of an employed activity, the working time or the
remuneration; and
(b) in the case of a self-employed activity, the turnover, working time,
number of services rendered or income.
In the framework of an overall assessment, a share of less than 25% in respect of the
criteria mentioned above shall be an indicator that a substantial part of the activities
is not being pursued in the relevant State.
(12) For the purposes of the application of point (b) of Article 15(3) of this
Convention, the ‘centre of interest’ of the activities of a self-employed person shall
be determined by taking account of all the aspects of that person’s occupational
activities, notably the place where the person’s fixed and permanent place of business
is located, the habitual nature or the duration of the activities pursued, the number of
services rendered, and the intention of the person concerned as revealed by all the
circumstances.
(13) For the determination of the applicable legislation under paragraphs 10, 11 and
12, the institutions concerned shall take into account the situation projected for the
following 12 calendar months.
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ARTICLE 14
Procedures for the application of Article 13(3)(b) and Article 13(4) and Article
14 of this Convention (on the provision of information to the institutions
concerned)
(1) Unless otherwise provided for by Article 15 of this Annex, where a person
pursues their activity outside the competent State, the employer or, in the case of a
person who does not pursue an activity as an employed person, the person concerned
shall inform the competent institution of the State whose legislation is applicable
thereof, whenever possible in advance. That institution shall issue the attestation
referred to in Article 17(2) of this Annex to the person concerned and shall without
delay make information concerning the legislation applicable to that person, pursuant
to point (b) of Article 13(3) or Article 14 of this Convention, available to the
institution designated by the competent authority of the State in which the activity is
pursued.
(2) An employer within the meaning of Article 13(4) of this Convention who has
an employee on board a vessel flying the flag of the other State shall inform the
competent institution of the State whose legislation is applicable thereof, whenever
possible in advance. That institution shall, without delay, make information
concerning the legislation applicable to the person concerned, pursuant to Article
13(4) of this Convention, available to the institution designated by the competent
authority of the State whose flag the vessel on which the employee is to perform the
activity is flying.
ARTICLE 15
Procedure for the application of Article 15 of this Convention
(1) A person who pursues activities in both States shall inform the institution
designated by the competent authority of the State of residence thereof.
(2) The designated institution of the place of residence shall without delay
determine the legislation applicable to the person concerned, having regard to Article
15 of this Convention and Article 13 of this Annex. That initial determination shall
be provisional. The institution shall inform the designated institutions of each State
in which an activity is pursued of its provisional determination.
(3) The provisional determination of the applicable legislation, as provided for in
paragraph 2, shall become definitive within two months of the institutions designated
by the competent authorities of the State(s) concerned being informed of it, in
accordance with paragraph 2, unless the legislation has already been definitively
determined on the basis of paragraph 4, or at least one of the institutions concerned
informs the institution designated by the competent authority of the State of
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residence by the end of this two-month period that it cannot yet accept the
determination or that it takes a different view on this.
(4) Where uncertainty about the determination of the applicable legislation
requires contacts between the institutions or authorities of both States, at the request
of one or more of the institutions designated by the competent authorities of the
State(s), or of the competent authorities themselves, the legislation applicable to the
person concerned shall be determined by common agreement, having regard to
Article 15 of this Convention and the relevant provisions of Article 13 of this Annex.
Where there is a difference of views between the institutions or competent authorities
concerned, those bodies shall seek agreement in accordance with the conditions set
out above and Article 6 of this Annex shall apply.
(5) The competent institution of the State whose legislation is determined to be
applicable either provisionally or definitively shall without delay inform the person
concerned.
(6) If the person concerned fails to provide the information referred to in paragraph
1, this Article shall be applied at the initiative of the institution designated by the
competent authority of the State of residence as soon as it is appraised of that
person’s situation, possibly via another institution concerned.
ARTICLE 16
Procedure for the application of Article 17 of this Convention
A request by the employer or the person concerned for exceptions to Articles 13 to
15 of this Convention shall be submitted, whenever possible in advance, to the
competent authority or the body designated by the authority of the State, whose
legislation the employee or person concerned requests be applied.
ARTICLE 17
Provision of information to persons concerned and employers
(1) The competent institution of the State whose legislation becomes applicable
pursuant to Title II of this Convention shall inform the person concerned and, where
appropriate, their employer(s) of the obligations laid down in that legislation. It shall
provide them with the necessary assistance to complete the formalities required by
that legislation.
(2) At the request of the person concerned or of the employer, the competent
institution of the State whose legislation is applicable pursuant to Title II of this
Convention shall provide an attestation that such legislation is applicable and shall
indicate, where appropriate, until what date and under what conditions.
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ARTICLE 18
Cooperation between institutions
(1) The relevant institutions shall communicate to the competent institution of the
State whose legislation is applicable to a person pursuant to Title II of this
Convention the necessary information required to establish the date on which that
legislation becomes applicable and the contributions which that person and his or her
employer(s) are liable to pay under that legislation.
(2) The competent institution of the State whose legislation becomes applicable to
a person pursuant to Title II of this Convention shall make the information indicating
the date on which the application of that legislation takes effect available to the
institution designated by the competent authority of the State to whose legislation
that person was last subject.
ARTICLE 19
Cooperation in case of doubts about the validity of issued documents
concerning the applicable legislation
Where there is doubt about the validity of a document showing the position of the
person for the purposes of the applicable legislation or the accuracy of the facts on
which the document is based, the institution of the State that receives the document
shall ask the issuing institution for the necessary clarification and, where appropriate,
the withdrawal or rectification of that document. The requesting institution shall
substantiate its request and provide the relevant supporting documentation that gave
rise to the request.
TITLE III SPECIAL PROVISIONS CONCERNING THE VARIOUS
CATEGORIES OF BENEFITS
CHAPTER 1
SICKNESS, MATERNITY AND EQUIVALENT PATERNITY BENEFITS
ARTICLE 20
General implementing provisions
(1) The competent authorities or institutions shall ensure that any necessary
information is made available to insured persons regarding the procedures and
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conditions for the granting of benefits in kind where such benefits are received in the
territory of a State other than that of the competent institution.
(2) The competent authorities or institutions shall ensure that any necessary
information, including but not limited to information related to receipt of benefits
and contribution history, is made available to insured persons to assist in the granting
of benefits in the other State.
(3) Notwithstanding point (a) of Article 9 of this Convention, a State may become
responsible for the cost of benefits in accordance with Article 25 of this Convention
only if, either the insured person has made a claim for a pension under the legislation
of that State, or in accordance with Articles 26 to 31 of this Convention, they receive
a pension under the legislation of that State.
ARTICLE 21
Residence in a State other than the competent State
Procedure and scope of right
(1) For the purposes of the application of Article 20 of this Convention, the insured
person or members of that person’s family shall be obliged to register promptly with
the institution of the place of residence. Their right to benefits in kind in the State of
residence shall be certified by a document issued by the competent institution upon
request of the insured person or upon request of the institution of the place of
residence.
(2) The document referred to in paragraph 1 shall remain valid until the competent
institution informs the institution of the place of residence of its cancellation.
The institution of the place of residence shall inform the competent institution of any
registration under paragraph 1 and of any change or cancellation of that registration.
(3) This Article applies mutatis mutandis to the persons referred to in Articles 25,
27 and 28 of this Convention.
Reimbursement
(4) Where a person or the members of that person’s family:
(a) have been issued with the document referred to in paragraph 1;
(b) have registered that document with the institution of the place of
residence in accordance with paragraph 1; and
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(c) a health fee has been paid by or on behalf of the person or members of
their family to the State of residence as part of an application for a permit
to enter, stay, work or reside in that State,
that person or members of that person’s family may apply to the institution of the
State of residence for reimbursement (in whole or part, as the case may be) of the
health fee paid.
(5) Where a claim is made in accordance with paragraph 1, the institution of the
State of residence shall determine that claim within three calendar months, starting
on the day the claim was received, and shall make any reimbursement in accordance
with this Article.
(6) Where the period of validity of the document referred to in paragraph 1 is less
than the period of time in respect of which the health fee has been paid, the amount
reimbursed shall not exceed that portion of the health fee which corresponds to the
period for which the document had been issued.
(7) Where the health fee was paid by another person on behalf of a person to whom
this Article applies, reimbursement may be made to that other person.
ARTICLE 22
Stay outside the competent State
Procedure and scope of right
(1) For the purposes of the application of Article 22 of this Convention, the insured
person shall present to the health care provider in the State of stay an entitlement
document issued by the competent institution indicating their entitlement to benefits
in kind. If the insured person does not have such a document, the institution of the
place of stay, upon request or if otherwise necessary, shall contact the competent
institution in order to obtain one.
(2) That document shall satisfy the requirements in Appendix 1.
(3) The benefits in kind referred to in Article 22(1) of this Convention shall refer
to the benefits in kind which are provided in the State of stay, in accordance with its
legislation, and which become necessary on medical grounds with a view to
preventing an insured person from being forced to return, before the end of the
planned duration of stay, to the competent State to obtain the necessary treatment.
Procedure and arrangements for meeting the costs and providing reimbursement of
benefits in kind
(4) If the insured person has actually borne the costs of all or part of the benefits
in kind provided within the framework of Article 22 of this Convention and if the
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legislation applied by the institution of the place of stay enables reimbursement of
those costs to an insured person, they may send an application for reimbursement to
the institution of the place of stay. In that case, that institution shall reimburse
directly to that person the amount of the costs corresponding to those benefits within
the limits of and under the conditions of the reimbursement rates laid down in its
legislation.
(5) If the reimbursement of such costs has not been requested directly from the
institution of the place of stay, the costs incurred shall be reimbursed to the person
concerned by the competent institution in accordance with the reimbursement rates
administered by the institution of the place of stay or the amounts which would have
been subject to reimbursement to the institution of the place of stay, if Article 44 of
this Annex had applied in the case concerned.
The institution of the place of stay shall provide the competent institution, upon
request, with all necessary information about these rates or amounts.
(6) By way of derogation from paragraph 5, the competent institution may
undertake the reimbursement of the costs incurred within the limits of and under the
conditions of the reimbursement rates laid down in its legislation, provided that the
insured person has agreed to this provision being applied to them.
(7) If the legislation of the State of stay does not provide for reimbursement
pursuant to paragraphs 4 and 5 in the case concerned, the competent institution may
reimburse the costs within the limits of and under the conditions of the
reimbursement rates laid down in its legislation, without the agreement of the insured
person.
(8) The reimbursement to the insured person shall not, in any event, exceed the
amount of costs actually incurred by them.
(9) In the case of substantial expenditure, the competent institution may pay the
insured person an appropriate advance as soon as that person submits the application
for reimbursement to it.
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Family members
(10) Paragraphs 1 to 9 apply mutatis mutandis to the members of the family of the
insured person.
Reimbursement for students
(11) Where a person:
(a) holds a valid entitlement document referred to in Appendix 1 issued by
the competent institution;
(b) has been accepted by a higher education institution in a State other than
the competent State (“State of study”) to pursue a full-time course of
study leading to a higher education qualification recognised by that State,
including diplomas, certificates or doctoral degrees at a higher education
institution, which may cover a preparatory course prior to such
education, in accordance with national law, or compulsory training;
(c) does not exercise, or has not exercised, an activity as an employed or
self-employed person in the State of study during the period to which the
health fee relates; and
(d) a health fee has been paid by or on behalf of that person to the State of
study as part of an application for a permit to enter, stay or reside for the
purposes of pursuing a full-time course of study in that State;
that person may apply to the institution of the State of study for reimbursement (in
whole or part, as the case may be) of the health fee paid.
(12) Where a claim is made in accordance with paragraph 11, the institution of the
State of study shall process and settle that claim within a reasonable period but not
later than six calendar months starting on the day the claim was received and make
any reimbursement in accordance with this Article.
(13) Where the period of validity of the entitlement document referred to in point
(a) of paragraph 11 is less than the period of time in respect of which the health fee
has been paid, the amount of the health fee reimbursed shall be the amount paid
which corresponds to the period of validity of that document.
(14) Where the health fee was paid by another person on behalf of a person to
whom this Article applies, reimbursement may be made to that other person.
(15) Paragraphs 11 to 14 apply mutatis mutandis to the members of the family of
that person.
(16) This Article shall enter into force 12 months after the date of entry into force
of this Convention.
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(17) A person who satisfied the conditions in paragraph 11 in the period between
the entry into force of this Convention and the date specified in paragraph 16 may,
upon the entry into force of this Article, make a claim for reimbursement under
paragraph 11 in relation to that period.
(18) By way of derogation from Article 8(1) of this Convention, charges may be
imposed by the State of study in accordance with its national law in respect of
benefits in kind that do not fulfil the criteria set out in point (a) of Article 22(1) and
which are provided to a person in respect of whom reimbursement has been made
during that person’s stay for the period to which that reimbursement relates.
ARTICLE 23
Scheduled treatment
Authorisation procedure
(1) For the purposes of the application of Article 23(1) of this Convention, the
insured person shall present a document issued by the competent institution to the
institution of the place of stay. For the purposes of this Article, the competent
institution shall mean the institution which bears the cost of the scheduled treatment;
in the cases referred to in Article 29(5) of this Convention, in which the benefits in
kind provided in the State of residence are reimbursed on the basis of fixed amounts,
the competent institution shall mean the institution of the place of residence.
(2) If an insured person does not reside in the competent State, they shall request
authorisation from the institution of the place of residence, which shall forward it to
the competent institution without delay.
In that event, the institution of the place of residence shall certify in a statement
whether the conditions set out in the second sentence of Article 23(2) of this
Convention are met in the State of residence.
The competent institution may refuse to grant the requested authorisation only if, in
accordance with the assessment of the institution of the place of residence, the
conditions set out in the second sentence of Article 23(2) of this Convention are not
met in the State of residence of the insured person, or if the same treatment can be
provided in the competent State itself, within a time limit which is medically
justifiable, taking into account the current state of health and the probable course of
illness of the person concerned.
The competent institution shall inform the institution of the place of residence of its
decision.
In the absence of a reply within the deadlines set by its national legislation, the
authorisation shall be considered to have been granted by the competent institution.
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(3) If an insured person who does not reside in the competent State is in need of
urgent vitally necessary treatment, and the authorisation cannot be refused in
accordance with the second sentence of Article 23(2) of this Convention, the
authorisation shall be granted by the institution of the place of residence on behalf
of the competent institution, which shall be immediately informed by the institution
of the place of residence.
The competent institution shall accept the findings and the treatment options of the
doctors approved by the institution of the place of residence that issues the
authorisation, concerning the need for urgent vitally necessary treatment.
(4) At any time during the procedure granting the authorisation, the competent
institution shall retain the right to have the insured person examined by a doctor of
its own choice in the State of stay or residence.
(5) The institution of the place of stay shall, without prejudice to any decision
regarding authorisation, inform the competent institution if it appears medically
appropriate to supplement the treatment covered by the existing authorisation.
Meeting the cost of benefits in kind incurred by the insured person
(6) Without prejudice to paragraph 7, Article 22(4) and (5) of this Annex apply
mutatis mutandis.
(7) If the insured person has actually borne all or part of the costs for the authorised
medical treatment themselves and the costs which the competent institution is
obliged to reimburse to the institution of the place of stay or to the insured person
according to paragraph 6 (actual cost) are lower than the costs which it would have
had to assume for the same treatment in the competent State (notional cost), the
competent institution shall reimburse, upon request, the cost of treatment incurred
by the insured person up to the amount by which the notional cost exceeds the actual
cost. The reimbursed sum may not, however, exceed the costs actually incurred by
the insured person and may take account of the amount which the insured person
would have had to pay if the treatment had been delivered in the competent State.
Meeting the costs of travel and stay as part of scheduled treatment
(8) Where the national legislation of the competent institution provides for the
reimbursement of the costs of travel and stay which are inseparable from the
treatment of the insured person, such costs for the person concerned and, if
necessary, for a person who must accompany them, shall be assumed by this
institution when an authorisation is granted in the case of treatment in another State.
Family members
(9) Paragraphs 1 to 8 apply mutatis mutandis to the members of the family of the
insured person.
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ARTICLE 24
Cash benefits relating to incapacity for work in the event of stay or residence
in the State that is not the competent State
Procedure to be followed by the insured person
(1) If the legislation of the competent State requires that the insured person
presents a certificate in order to be entitled to cash be nefits relating to incapacity for
work pursuant to Article 24(1) of this Convention, the insured person shall ask the
doctor of the State of residence who established that person’s state of health to certify their incapacity for work and its probable duration.
(2) The insured person shall send the certificate to the competent institution within
the time limit laid down by the legislation of the competent State.
(3) Where the doctors providing treatment in the State of residence do not issue
certificates of incapacity for work, and where such certificates are required under the
legislation of the competent State, the person concerned shall apply directly to the
institution of the place of residence. That institution shall immediately arrange for a
medical assessment of the person’s incapacity for work and for the certificate
referred to in paragraph 1 to be drawn up. The certificate shall be forwarded to the
competent institution forthwith.
(4) The forwarding of the document referred to in paragraphs 1, 2 and 3 shall not
exempt the insured person from fulfilling the obligations provided for by the
applicable legislation, in particular with regard to that person’s employer. Where appropriate, the employer or the competent institution may call upon the employee
to participate in activities designed to promote and assist their return to employment.
Procedure to be followed by the institution of the State of residence
(5) At the request of the competent institution, the institution of the place of
residence shall carry out any necessary administrative checks or medical
examinations of the person concerned in accordance with the legislation applied by
this latter institution. The report of the examining doctor concerning, in particular,
the probable duration of the incapacity for work, shall be forwarded without delay
by the institution of the place of residence to the competent institution.
Procedure to be followed by the competent institution
(6) The competent institution shall reserve the right to have the insured person
examined by a doctor of its choice.
(7) The competent institution shall pay the cash benefits directly to the person
concerned and shall, where necessary, inform the institution of the place of residence
thereof.
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(8) For the purposes of the application of Article 24(1) of this Convention, the
particulars of the certificate of incapacity for work of an insured person drawn up in
the State which is not competent on the basis of the medical findings of the
examining doctor or institution shall have the same legal value as a certificate drawn
up in the competent State.
(9) If the competent institution refuses the cash benefits, it shall notify its decision
to the insured person and at the same time to the institution of the place of residence.
Procedure in the event of a stay in a State other than the competent State
(10) Paragraphs 1 to 9 apply mutatis mutandis when the insured person stays in the
State that is not the competent State.
CHAPTER 2
BENEFITS IN RESPECT OF ACCIDENTS AT WORK AND
OCCUPATIONAL DISEASES
ARTICLE 25
Right to benefits in kind and in cash in the event of residence or stay in the State that
is not the competent State
(1) For the purposes of the application of Article 36 of this Convention, the
procedures laid down in Articles 21 to 24 of this Annex apply mutatis mutandis.
(2) When providing special benefits in kind in connection with accidents at work
and occupational diseases under the national legislation of the State of stay or
residence, the institution of that State shall without delay inform the competent
institution.
ARTICLE 26
Procedure in the event of an accident at work or occupational disease which
occurs in the State that is not the competent State
(1) If an accident at work occurs or an occupational disease is diagnosed for the
first time in the State that is not the competent State, the declaration or notification
of the accident at work or the occupational disease, where the declaration or
notification exists under national legislation, shall be carried out in accordance with
the legislation of the competent State, without prejudice, where appropriate, to any
other applicable legal provisions in force in the State in which the accident at work
occurred or in which the first medical diagnosis of the occupational disease was
made, which remain applicable in such cases. The declaration or notification shall
be addressed to the competent institution.
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(2) The institution of the State in the territory of which the accident at work
occurred or in which the occupational disease was first diagnosed, shall notify the
competent institution of medical certificates drawn up in the territory of that State.
(3) Where, as a result of an accident while travelling to or from work which occurs
in the territory of the State that is not the competent State, an inquiry is necessary in
the territory of the first State in order to determine any entitlement to relevant
benefits, a person may be appointed for that purpose by the competent institution,
which shall inform the authorities of that State. The institutions shall cooperate with
each other in order to assess all relevant information and to consult the reports and
any other documents relating to the accident.
(4) Following treatment, a detailed report accompanied by medical certificates
relating to the permanent consequences of the accident or disease, in particular the
injured person’s present state and the recovery or stabilisation of injuries, shall be
sent upon request of the competent institution. The relevant fees shall be paid by the
institution of the place of residence or of stay, where appropriate, at the rate applied
by that institution to the charge of the competent institution.
(5) At the request of the institution of the place of residence or stay, where
appropriate, the competent institution shall notify it of the decision setting the date
for the recovery or stabilisation of injuries and, where appropriate, the decision
concerning the granting of a pension.
ARTICLE 27
Disputes concerning the occupational nature of the accident or disease
(1) Where the competent institution disputes the application of the legislation
relating to accidents at work or occupational diseases under Article 36(2) of this
Convention, it shall without delay inform the institution of the place of residence or
stay which provided the benefits in kind, which will then be considered as sickness
insurance benefits.
(2) When a final decision has been taken on that subject, the competent institution
shall, without delay, inform the institution of the place of residence or stay which
provided the benefits in kind.
Where an accident at work or occupational disease is not established, benefits in kind
shall continue to be provided as sickness benefits if the person concerned is entitled
to them.
Where an accident at work or occupational disease is established, sickness benefits
in kind provided to the person concerned shall be considered as accident at work or
occupational disease benefits from the date on which the accident at work occurred
or the occupational disease was first medically diagnosed.
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(3) Article 6(6) of this Annex applies mutatis mutandis.
ARTICLE 28
Procedure in the event of exposure to the risk of an occupational disease in
both States
(1) In the case referred to in Article 38 of this Convention, the declaration or
notification of the occupational disease shall be sent to the competent institution for
occupational diseases of the last State under the legislation of which the person
concerned pursued an activity likely to cause that disease.
When the institution to which the declaration or notification was sent establishes that
an activity likely to cause the occupational disease in question was last pursued under
the legislation of the other State, it shall send the declaration or notification and all
accompanying certificates to the equivalent institution in that State.
(2) Where the institution of the last State under the legislation of which the person
concerned pursued an activity likely to cause the occupational disease in question
establishes that the person concerned or their survivors do not meet the requirements
of that legislation, inter alia, because the person concerned had never pursued in that
State an activity which caused the occupational disease or because that State does
not recognise the occupational nature of the disease, that institution shall forward
without delay the declaration or notification and all accompanying certificates,
including the findings and reports of medical examinations performed by the first
institution to the institution of the previous State under the legislation of which the
person concerned pursued an activity likely to cause the occupational disease in
question.
ARTICLE 29
Exchange of information between institutions and advance payments in the
event of an appeal against rejection
(1) In the event of an appeal against a decision to refuse benefits taken by the
institution of a State under the legislation of which the person concerned pursued an
activity likely to cause the occupational disease in question, that institution shall
inform the institution to which the declaration or notification was sent, in accordance
with the procedure provided for in Article 28(2) of this Annex, and shall
subsequently inform it when a final decision is reached.
(2) Where a person is entitled to benefits under the legislation applied by the
institution to which the declaration or notification was sent, that institution shall
make the advance payments, the amount of which shall be determined, where
appropriate, after consulting the institution which made the decision against which
the appeal was lodged, and in such a way that overpayments are avoided. The latter
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institution shall reimburse the advance payments made if, as a result of the appeal, it
is obliged to provide those benefits. That amount will then be deducted from the
benefits due to the person concerned, in accordance with the procedure provided for
in Articles 53 and 54 of this Annex.
(3) Article 6(6) of this Annex applies mutatis mutandis.
ARTICLE 30
Aggravation of an occupational disease
In the cases covered by Article 39 of this Convention, the claimant must provide the
institution in the State from which they are claiming entitlement to benefits with
details concerning benefits previously granted for the occupational disease in
question. That institution may contact any other previously competent institution in
order to obtain the information it considers necessary.
ARTICLE 31
Assessment of the degree of incapacity in the event of occupational accidents
or diseases which occurred previously or subsequently
Where a previous or subsequent incapacity for work was caused by an accident
which occurred when the person concerned was subject to the legislation of a State
which makes no distinction according to the origin of the incapacity to work, the
competent institution or the body designated by the competent authority of the State
in question shall:
(a) upon request by the competent institution of the other State, provide
information concerning the degree of the previous or subsequent
incapacity for work, and where possible, information making it possible
to determine whether the incapacity is the result of an accident at work
within the meaning of the legislation applied by the institution in the
other State;
(b) take into account the degree of incapacity caused by these previous or
subsequent cases when determining the right to benefits and the amount,
in accordance with the applicable legislation.
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ARTICLE 32
Submission and investigation of claims for pensions or supplementary
allowances
In order to receive a pension or supplementary allowance under the legislation of a
State, the person concerned or their survivors residing in the territory of the other
State shall submit, where appropriate, a claim either to the competent institution or
to the institution of the place of residence, which shall send it to the competent
institution.
The claim shall contain the information required under the legislation applied by the
competent institution.
CHAPTER 3
DEATH GRANTS
ARTICLE 33
Claim for death grants
For the purposes of applying Articles 42 and 43 of this Convention, the claim for
death grants shall be sent either to the competent institution or to the institution of
the claimant’s place of residence, which shall send it to the competent institution.
The claim shall contain the information required under the legislation applied by the
competent institution.
CHAPTER 4
INVALIDITY BENEFITS AND OLD-AGE AND SURVIVORS’ PENSIONS
ARTICLE 34
Additional provisions for the calculation of the benefit
(1) For the purposes of calculating the theoretical amount and the actual amount
of the benefit in accordance with Article 49(1)(b) of this Convention, the rules
provided for in Article 11(3), (4), (5) and (6) of this Annex shall apply.
(2) Where periods of voluntary or optional continued insurance have not been
taken into account under Article 11(3) of this Annex, the institution of the State under
whose legislation those periods were completed shall calculate the amount
corresponding to those periods under the legislation it applies. The actual amount of
the benefit, calculated in accordance with Article 49(1)(b) of this Convention, shall
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be increased by the amount corresponding to periods of voluntary or optional
continued insurance.
(3) The institution of a State shall calculate, under the legislation it applies, the
amount due corresponding to periods of voluntary or optional continued insurance
which, under Article 50(3)(c) of this Convention, shall not be subject to the other
State’s rules relating to withdrawal, reduction or suspension.
Where the legislation applied by the competent institution does not allow it to
determine this amount directly, on the grounds that that legislation allocates different
values to insurance periods, a notional amount may be established. The Joint
Administrative Committee shall lay down the detailed arrangements for the
determination of that notional amount.
ARTICLE 35
Submission of claims for old-age and survivors’ pensions
(1) The claimant shall submit a claim to the institution of their place of residence
or to the institution of the State whose legislation was applicable. If the person
concerned was not, at any time, subject to the legislation applied by the institution
of the place of residence, that institution shall forward the claim to the institution of
the State whose legislation was applicable.
(2) The date of submission of the claim shall apply to the institutions concerned.
ARTICLE 36
Certificates and information to be submitted with the claim by the claimant
(1) The claim shall be submitted by the claimant in accordance with the provisions
of the legislation applied by the institution referred to in Article 35(1) of this Annex,
and be accompanied by the supporting documents required by that legislation. In
particular, the claimant shall supply all available relevant information and supporting
documents relating to periods of insurance (institutions, identification numbers),
employment (employers) or self-employment (nature and place of activity) and
residence (addresses) which may have been completed under other legislation, as
well as the length of those periods.
(2) Where, in accordance with Article 47(1) of this Convention, the claimant
requests deferment of the award of old-age benefits under the legislation of either
State, the claimant shall state that in their claim and specify under which legislation
the deferment is requested. In order to enable the claimant to exercise that right, the
institutions concerned shall, upon the request of the claimant, notify the claimant of
all the information available to the institutions so that the claimant can assess the
consequences of concurrent or successive awards of benefits which they might claim.
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(3) Should the claimant withdraw a claim for benefits provided for under the
legislation of a State, that withdrawal shall not be considered as a concurrent
withdrawal of claims for benefits under the legislation of the other State.
ARTICLE 37
Investigation of claims by the institutions concerned
Contact institution
(1) The institution to which the claim for benefits is submitted or forwarded in
accordance with Article 35(1) of this Annex shall be referred to hereinafter as the
‘contact institution’. The institution of the place of residence shall not be referred to as the contact institution if the person concerned has not, at any time, been subject to
the legislation which that institution applies.
In addition to investigating the claim for benefits under the legislation which it
applies, that institution shall, in its capacity as contact institution, promote the
exchange of data, the communication of decisions and the operations necessary for
the investigation of the claim by the institutions concerned, and supply the claimant,
upon request, with any information relevant to the aspects of the investigation which
arise under this Convention, and keep the claimant informed of its progress.
Investigation of claims for old-age and survivors’ pensions
(2) The contact institution shall, without delay, send claims for benefits and all the
documents which it has available and, where appropriate, the relevant documents
supplied by the claimant to the institution of the other State so that it can start the
investigation of the claim concurrently. The contact institution shall notify the
institution of the other State of periods of insurance or residence subject to its
legislation. It shall also indicate which documents shall be submitted at a later date
and supplement the claim as soon as possible.
(3) The institution of the other State shall notify the contact institution, as soon as
possible, of the periods of insurance or residence subject to its legislation.
(4) The institution of the other State shall calculate the amount of benefits in
accordance with Article 49 of this Convention and shall notify the contact institution
of its decision, of the amount of benefits due and of any information required for the
purposes of Articles 50 to 52 of this Convention.
(5) Should an institution establish, on the basis of the information referred to in
paragraphs 2 and 3 of this Article, that Article 54(2) or (3) of this Convention is
applicable, it shall inform the contact institution.
(6) Notwithstanding Article 2(1) of this Convention, the Swiss institution shall
also notify the contact institution of the United Kingdom of the periods of insurance
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completed under Swiss legislation for the purpose of the application of this
Convention by the United Kingdom to:
(a) a person who does not fall within the scope of this Convention, as applied
by Switzerland under Article 2(1) of this Convention, by virtue of their
nationality; and
(b) the members of the family of a person described in point (a).
ARTICLE 38
Notification of decisions to the claimant
Each institution shall notify the claimant of the decision it has taken in accordance
with the applicable legislation. Each decision shall specify the remedies and periods
allowed for appeals.
ARTICLE 39
Provisional instalments and advance payment of a benefit
(1) Notwithstanding paragraphs (7) and (8) of Article 6 of this Annex, an
institution which establishes, while investigating a claim for benefits, that the
claimant is entitled to an independent benefit under the applicable legislation, in
accordance with point (a) of Article 49(1) of this Convention, shall pay that benefit
without delay. That payment shall be considered provisional if the amount might be
affected by the result of the claim investigation procedure.
(2) Whenever it is evident from the information available that the claimant is
entitled to a payment from an institution under point (b) of Article 49(1) of this
Convention, that institution shall make an advance payment, the amount of which
shall be as close as possible to the amount which will probably be paid under point
(b) of Article 49(1) of this Convention.
(3) Each institution which is obliged to pay the provisional benefits or advance
payment under paragraphs 1 or 2 shall inform the claimant without delay, specifically
drawing the claimant’s attention to the provisional nature of the measure and any rights of appeal in accordance with its legislation.
ARTICLE 40
New calculation of benefits
(1) Where there is a new calculation of benefits in accordance with Article 47(4)
and 55(1) of this Convention, Article 39 of this Annex shall apply mutatis mutandis.
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(2) Where there is a new calculation, withdrawal or suspension of the benefit, the
institution which took the decision shall inform the person concerned without delay
and shall inform each of the institutions in respect of which the person concerned has
an entitlement.
ARTICLE 41
Measures intended to accelerate the pension calculation process
(1) In order to facilitate and accelerate the investigation of claims and the payment
of benefits, the institutions to whose legislation a person has been subject shall:
(a) exchange with or make available to institutions of the other State the
elements for identifying persons who change from one applicable
national legislation to the other, and together ensure that those
identification elements are retained and correspond, or, failing that,
provide those persons with the means to access their identification
elements directly;
(b) sufficiently in advance of the minimum age for commencing pension
rights or before an age to be determined by national legislation, exchange
with or make available to the person concerned and to institutions of the
other State information (periods completed or other important elements)
on the pension entitlements of persons who have changed from one
applicable legislation to the other or, failing that, inform those persons
of, or provide them with, the means of familiarising themselves with
their prospective benefit entitlement.
(2) For the purposes of applying paragraph 1, the States through the Joint
Administrative Committee shall agree the elements of information to be exchanged
or made available and shall establish the appropriate procedures and mechanisms,
taking account of the characteristics, administrative and technical organisation, and
the technological means at the disposal of both States’ pension schemes.
ARTICLE 42
Determination of the degree of invalidity
Each institution shall, in accordance with its legislation, have the possibility of
having the claimant examined by a medical doctor or other expert of its choice to
determine the degree of invalidity. However, the institution of a State shall take into
consideration documents, medical reports and administrative information collected
by the other institution as if they had been drawn up in its own territory.
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CHAPTER 5
UNEMPLOYMENT BENEFITS
ARTICLE 43
Aggregation of periods and calculation of benefits
(1) Article 11(1) of this Annex applies mutatis mutandis to Article 56 of this
Convention. Without prejudice to the underlying obligations of the institutions
involved, the person concerned may submit to the competent institution a document
issued by the institution of the State to whose legislation they were subject in respect
of that person’s last activity as an employed or self-employed person specifying the
periods completed under that legislation.
(2) For the purposes of applying Article 57 of this Convention, the competent
institution of a State whose legislation provides that the calculation of benefits varies
with the number of members of the family shall also take into account the members
of the family of the person concerned residing in the other State as if they resided in
the competent State. This provision shall not apply where, in the State of residence
of members of the family, another person is entitled to unemployment benefits
calculated on the basis of the number of members of the family.
TITLE IV FINANCIAL PROVISIONS
CHAPTER 1
REIMBURSEMENT OF THE COST OF BENEFITS IN APPLICATION OF
ARTICLE 35 AND ARTICLE 41 OF THIS CONVENTION
Section 1
Reimbursement on the basis of actual expenditure
ARTICLE 44
Principles
(1) For the purposes of applying Article 35 and Article 41 of this Convention, the
actual amount of the expenses for benefits in kind, as shown in the accounts of the
institution that provided them, shall be reimbursed to that institution by the
competent institution, except where Article 54 of this Annex is applicable.
(2) If any or part of the actual amount of the expenses for benefits referred to in
paragraph 1 is not shown in the accounts of the institution that provided them, the
amount to be refunded shall be determined on the basis of a lump-sum payment
calculated from all the appropriate references obtained from the data available. The
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Joint Administrative Committee shall agree the bases to be used for calculation of
the lump-sum payment and shall decide the amount thereof.
(3) Higher rates than those applicable to the benefits in kind provided to insured
persons subject to the legislation applied by the institution providing the benefits
referred to in paragraph 1 may not be taken into account in the reimbursement.
Section 2
Reimbursement on the basis of fixed amounts
ARTICLE 45
Fixed amount for benefits in kind
In the case of the United Kingdom, the amount of benefits in kind supplied to:
(a) subject to Article 34 of this Convention, family members who do not
reside in the same State as the insured person, as provided for in Article
20 of this Convention; and to
(b) pensioners and members of their family, as provided for in Articles 27(1)
and 28 of this Convention;
shall be reimbursed by the competent institutions to the institutions providing those
benefits, on the basis of a fixed amount established for each calendar year. This fixed
amount shall be as close as possible to actual expenditure.
ARTICLE 46
Calculation method of the monthly fixed amounts and the total fixed amount
(1) For the United Kingdom as creditor State, the monthly fixed amount per person
(Fi) for a calendar year shall be determined by dividing the annual average cost per
person (Yi), broken down by age group (i), by 12 and by applying a reduction (X) to
the result in accordance with the following formula:
Fi = Yi*1/12*(0.85)
Where:
- the index (i = 1, 2 and 3) represents the three age groups used for calculating the
fixed amounts:
- i = 1: persons aged under 20,
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- i = 2: persons aged from 20 to 64,
- i = 3: persons aged 65 and over,
- Yi represents the annual average cost per person in age group i, as defined in
paragraph 2.
(2) The annual average cost per person (Yi) in age group i shall be obtained by
dividing the annual expenditure on all benefits in kind provided by the institutions
of the United Kingdom to all persons in the age group concerned subject to its
legislation and residing within its territory by the average number of persons
concerned in that age group in the calendar year in question.
(3) For the United Kingdom as debtor State, the total fixed amount for a calendar
year shall be the sum of the products obtained by multiplying, in each age group i,
the determined monthly fixed amounts per person by the number of months
completed by the persons concerned in Switzerland in that age group.
The number of months completed by the persons concerned in Switzerland shall be
the sum of the calendar months in a calendar year during which the persons
concerned were, because of their residence in Switzerland, eligible to receive
benefits in kind in that territory at the expense of the United Kingdom. Those months
shall be determined from an inventory kept for that purpose by the institution of the
place of residence, based on documentary evidence of the entitlement of the
beneficiaries supplied by the competent institution.
(4) The Joint Administrative Committee may agree a proposal containing any
amendments which may prove necessary in order to ensure that the calculation of
fixed amounts comes as close as possible to the actual expenditure incurred.
(5) The Joint Administrative Committee shall agree the methods for determining
the elements for calculating the fixed amounts referred to in paragraphs 1 to 4.
ARTICLE 47
Notification of annual average costs
The annual average cost per person in each age group for a specific year shall be
notified to the Joint Administrative Committee at the latest by the end of the second
year following the year in question. If the notification is not made by this deadline,
the annual average cost per person which the Joint Administrative Committee has
last determined for a previous year will be taken.
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Section 3
Common provisions
ARTICLE 48
Procedure for reimbursement between institutions
(1) The reimbursements between the States shall be made as promptly as possible.
Every institution concerned shall be obliged to reimburse claims before the deadlines
mentioned in this Section, as soon as it is in a position to do so. A dispute concerning
a particular claim shall not hinder the reimbursement of another claim or other
claims.
(2) The reimbursements between the institutions of Switzerland and the United
Kingdom, provided for in Article 35 and Article 41 of this Convention, shall be made
via the liaison body. There may be a separate liaison body for reimbursements under
Article 35 and Article 41 of this Convention.
ARTICLE 49
Deadlines for the introduction and settlement of claims
(1) Claims based on actual expenditure shall be introduced to the liaison body of
the debtor State within 12 months of the end of the calendar half-year during which
those claims were recorded in the accounts of the creditor institution.
(2) Claims of fixed amounts for a calendar year shall be introduced to the liaison
body of the debtor State within the 12-month period following the month during
which the average costs for the year concerned were approved by the Joint
Administrative Committee. The inventories referred to in Article 46(3) of this Annex
shall be presented by the end of the year following the reference year.
(3) In the case referred to in the second point of Article 6(5) of this Annex, the
deadline set out in paragraphs 1 and 2 of this Article shall not start before the
competent institution has been identified.
(4) Claims introduced after the deadlines specified in paragraphs 1 and 2 shall not
be considered.
(5) The claims shall be paid to the liaison body of the creditor State referred to in
Article 48 of this Annex by the debtor institution within 18 months of the end of the
month during which they were introduced to the liaison body of the debtor State.
This does not apply to the claims which the debtor institution has rejected for a
relevant reason within that period.
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(6) Any disputes concerning a claim shall be settled, at the latest, within 36 months
following the month in which the claim was introduced.
(7) The Joint Administrative Committee shall facilitate the final closing of
accounts in cases where a settlement cannot be reached within the period set out in
paragraph 6, and, upon a reasoned request by one of the parties in the dispute, shall
give its opinion on a dispute within six months following the month in which the
matter was referred to it.
ARTICLE 50
Interest on late payments and down payments
(1) From the end of the 18-month period set out in Article 49(5) of this Annex,
interest can be charged by the creditor institution on outstanding claims, unless the
debtor institution has made, within six months of the end of the month during which
the claim was introduced, a down payment of at least 90% of the total claim
introduced pursuant to Article 49(1) or (2) of this Annex. For those parts of the claim
not covered by the down payment, interest may be charged only from the end of the
36-month period set out in Article 49(6) of this Annex.
(2) The interest shall be calculated on the basis of the reference rate agreed by the
Joint Administrative Committee. The reference rate applicable shall be that in force
on the first day of the month on which the payment is due.
(3) No liaison body shall be obliged to accept a down payment as provided for in
paragraph 1. If, however, a liaison body declines such an offer, the creditor institution
shall no longer be entitled to charge interest on late payments related to the claims in
question other than under the second sentence of paragraph 1.
ARTICLE 51
Statement of annual accounts
The States shall notify each other the amount of the claims introduced, settled or
contested (creditor position) and the amount of claims received, settled or contested
(debtor position).
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CHAPTER 2
RECOVERY OF BENEFITS PROVIDED BUT NOT DUE, RECOVERY OF
PROVISIONAL PAYMENTS AND CONTRIBUTIONS, OFFSETTING AND
ASSISTANCE WITH RECOVERY
Section 1
Principles
ARTICLE 52
Common provisions
For the purposes of applying Article 66 of this Convention and within the framework
defined therein, the recovery of claims shall, wherever possible, be by way of
offsetting either between the institutions of the States, or vis-à-vis the natural or legal
person concerned in accordance with Articles 53 to 55 of this Annex. If it is not
possible to recover all or any of the claim via this offsetting procedure, the remainder
of the amount due shall be recovered in accordance with Articles 56 to 66 of this
Annex.
Section 2
Offsetting
ARTICLE 53
Benefits received unduly
(1) If the institution of one State has paid undue benefits to a person, that
institution may, within the terms and limits laid down in the legislation it applies,
request the institution of the other State responsible for paying benefits to the person
concerned to deduct the undue amount from arrears or ongoing payments owed to
the person concerned regardless of the social security branch under which the benefit
is paid. The institution of the latter State shall deduct the amount concerned subject
to the conditions and limits applying to this kind of offsetting procedure in
accordance with the legislation it applies in the same way as if it had made the
overpayments itself, and shall transfer the amount deducted to the institution that has
paid undue benefits.
(2) By way of derogation from paragraph 1, if, when awarding or reviewing
benefits in respect of invalidity benefits, old-age and survivors’ pensions pursuant to Chapters 3 and 4 of Title III of this Convention, the institution of one State has paid
to a person benefits of undue sum, that institution may request the institution of the
other State responsible for the payment of corresponding benefits to the person
concerned to deduct the amount overpaid from the arrears payable to the person
82
concerned. After the latter institution has informed the institution that has paid an
undue sum of these arrears, the institution which has paid the undue sum shall within
two months communicate the amount of the undue sum. If the institution which is
due to pay arrears receives that communication within the deadline it shall transfer
the amount deducted to the institution which has paid undue sums. If the deadline
expires, that institution shall without delay pay out the arrears to the person
concerned.
(3) If a person has received social welfare assistance in one State during a period
in which they were entitled to benefits under the legislation of the other State, the
body which provided the assistance may, if it is legally entitled to reclaim the benefits
due to the person concerned, request the institution of the other State responsible for
paying benefits in favour of the person concerned to deduct the amount of assistance
paid from the amounts which that State pays to the person concerned.
This provision applies mutatis mutandis to any family member of a person concerned
who has received assistance in the territory of one State during a period in which the
insured person was entitled to benefits under the legislation of the other State in
respect of that family member.
The institution of a State which has paid an undue amount of assistance shall send a
statement of the amount due to the institution of the other State, which shall then
deduct the amount, subject to the conditions and limits laid down for this kind of
offsetting procedure in accordance with the legislation it applies, and transfer the
amount without delay to the institution that has paid the undue amount.
ARTICLE 54
Provisionally paid benefits in cash or contributions
(1) For the purposes of applying Article 6 of this Annex, at the latest three months
after the applicable legislation has been determined or the institution responsible for
paying the benefits has been identified, the institution which provisionally paid the
cash benefits shall draw up a statement of the amount provisionally paid and shall
send it to the institution identified as being competent.
The institution identified as being competent for paying the benefits shall deduct the
amount due in respect of the provisional payment from the arrears of the
corresponding benefits it owes to the person concerned and shall without delay
transfer the amount deducted to the institution which provisionally paid the cash
benefits.
If the amount of provisionally paid benefits exceeds the amount of arrears, or if
arrears do not exist, the institution identified as being competent shall deduct this
amount from ongoing payments subject to the conditions and limits applying to this
kind of offsetting procedure under the legislation it applies, and without delay
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transfer the amount deducted to the institution which provisionally paid the cash
benefits.
(2) The institution which has provisionally received contributions from a legal or
natural person shall not reimburse the amounts in question to the person who paid
them until it has ascertained from the institution identified as being competent the
sums due to it under Article 6(4) of this Annex.
Upon request of the institution identified as being competent, which shall be made
at the latest three months after the applicable legislation has been determined, the
institution that has provisionally received contributions shall transfer them to the
institution identified as being competent for that period for the purpose of settling
the situation concerning the contributions owed by the legal or natural person to it.
The contributions transferred shall be retroactively deemed as having been paid to
the institution identified as being competent.
If the amount of provisionally paid contributions exceeds the amount the legal or
natural person owes to the institution identified as being competent, the institution
which provisionally received contributions shall reimburse the amount in excess to
the legal or natural person concerned.
ARTICLE 55
Costs related to offsetting
No costs are payable where the debt is recovered via the offsetting procedure
provided for in Articles 53 and 54 of this Annex.
Section 3
Recovery
ARTICLE 56
Definitions and common provisions
(1) For the purposes of this Section:
(a) “claim” means all claims relating to contributions or to benefits paid or provided unduly, including interest, fines, administrative penalties and
all other charges and costs connected with the claim in accordance with
the legislation of the State making the claim;
(b) “applicant party” means, in respect of each State, any institution which makes a request for information, notification or recovery concerning a
claim as defined above;
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(c) “requested party” means, in respect of each State, any institution to
which a request for information, notification or recovery can be made.
(2) Requests and any related communications between the States shall, in general,
be addressed via designated institutions.
(3) Practical implementation measures, including, among others, those related to
Article 4 of this Annex and to setting a minimum threshold for the amounts for which
a request for recovery can be made, shall be taken by the Joint Administrative
Committee.
ARTICLE 57
Requests for information
(1) At the request of the applicant party, the requested party shall provide any
information which would be useful to the applicant party in the assessment and
recovery of its claim.
(2) In order to obtain that information, the requested party shall make use of the
powers provided for under the laws, regulations or administrative practices applying
to the recovery of similar claims arising in its own State. The request for information
from the applicant party shall indicate the name, last known address, and any other
relevant information relating to the identification of the legal or natural person
concerned to whom the information to be provided relates and the nature and amount
of the claim in respect of which the request is made.
(3) The requested party shall not be obliged to supply information:
(a) which it would not be able to obtain for the purpose of recovering similar
claims arising in its own territory;
(b) which would disclose any commercial, industrial or professional secrets;
or
(c) the disclosure of which would be liable to prejudice the security of or be
contrary to the public policy of a State.
(4) The requested party shall inform the applicant party of the grounds for refusing
a request for information.
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ARTICLE 58
Notification
(1) The requested party shall, at the request of the applicant party, and in
accordance with the rules in force for the notification of similar instruments or
decisions in its own territory, notify the addressee of all instruments and decisions,
including those of a judicial nature, which come from the State of the applicant party
and which relate to a claim or to its recovery.
(2) The request for notification shall indicate the name, address and any other
relevant information relating to the identification of the addressee concerned to
which the applicant party normally has access, the nature and the subject of the
instrument or decision to be notified and, if necessary, the name, address and any
other relevant information relating to the identification of the debtor and the claim to
which the instrument or decision relates, and any other useful information.
(3) The requested party shall without delay inform the applicant party of the action
taken on its request for notification and, particularly, of the date on which the
decision or instrument was forwarded to the addressee.
ARTICLE 59
Request for recovery
(1) At the request of the applicant party, the requested party shall recover claims
that are the subject of an instrument permitting enforcement issued by the applicant
party to the extent permitted by and in accordance with the laws and administrative
practices in force in the State of the requested party.
(2) The applicant party may only make a request for recovery if:
(a) it also provides to the requested party an official or certified copy of the
instrument permitting enforcement of the claim in the State of the
applicant party;
(b) the claim or instrument permitting its enforcement are not contested in
its own State;
(c) it has, in its own State, applied appropriate recovery procedures available
to it on the basis of the instrument referred to in paragraph 1, and the
measures taken will not result in the payment in full of the claim;
(d) the period of limitation according to its own legislation has not expired.
(3) The request for recovery shall indicate:
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(a) the name, address and any other relevant information relating to the
identification of the natural or legal person concerned or to the
identification of any third party holding that person’s assets;
(b) the name, address and any other relevant information relating to the
identification of the applicant party;
(c) a reference to the instrument permitting its enforcement, issued in the
State of the applicant party;
(d) the nature and amount of the claim, including the principal, interest,
fines, administrative penalties and all other charges and costs due
indicated in the currencies of the State(s) of the applicant and requested
parties;
(e) the date of notification of the instrument to the addressee by the applicant
party or by the requested party;
(f) the date from which and the period during which enforcement is possible
under the laws in force in the State of the applicant party;
(g) any other relevant information.
(4) The request for recovery shall also contain a declaration by the applicant party
confirming that the conditions laid down in paragraph 2 have been fulfilled.
(5) The applicant party shall forward to the requested party any relevant
information relating to the matter which gave rise to the request for recovery, as soon
as this comes to its knowledge.
ARTICLE 60
Instrument permitting enforcement of recovery
(1) In accordance with Article 66(2) of this Convention, the instrument permitting
enforcement of the claim shall be directly recognised and treated automatically as an
instrument permitting the enforcement of a claim of the State of the requested party.
(2) Notwithstanding paragraph 1, the instrument permitting enforcement of the
claim may, where appropriate and in accordance with the provisions in force in the
State of the requested party, be accepted as, recognised as, supplemented with, or
replaced by an instrument authorising enforcement in the territory of that State.
(3) Within three months of the date of receipt of the request for recovery, the State
shall endeavour to complete the acceptance, recognition, supplementing or
replacement, except in cases where paragraph 4 applies. States may not refuse to
complete these actions where the instrument permitting enforcement is properly
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drawn up. The requested party shall inform the applicant party of the grounds for
exceeding the three-month period.
(4) If any of these actions should give rise to a dispute in connection with the claim
or the instrument permitting enforcement issued by the applicant party, Article 62 of
this Annex shall apply.
ARTICLE 61
Payment arrangements and deadline
(1) Claims shall be recovered in the currency of the State of the requested party.
The entire amount of the claim that is recovered by the requested party shall be
remitted by the requested party to the applicant party.
(2) The requested party may, where the laws, regulations or administrative
provisions in force in its own State so permit, and after consulting the applicant party,
allow the debtor time to pay or authorise payment by instalment. Any interest
charged by the requested party in respect of such extra time to pay shall also be
remitted to the applicant party.
(3) From the date on which the instrument permitting enforcement of the recovery
of the claim has been directly recognised in accordance with Article 60(1) of this
Annex, or accepted, recognised, supplemented or replaced in accordance with
Article 60(2) of this Annex, interest shall be charged for late payment under the laws,
regulations and administrative provisions in force in the State of the requested party
and shall also be remitted to the applicant party.
ARTICLE 62
Contestation concerning the claim or the instrument permitting enforcement
of its recovery and contestation concerning enforcement measures
(1) If, in the course of the recovery procedure, the claim or the instrument
permitting its enforcement issued in the State of the applicant party are contested by
an interested party, the action shall be brought by this party before the appropriate
authorities of the State of the applicant party, in accordance with the laws in force in
that State. The applicant party shall without delay notify the requested party of this
action. The interested party may also inform the requested party of the action.
(2) As soon as the requested party has received the notification or information
referred to in paragraph 1 either from the applicant party or from the interested party,
it shall suspend the enforcement procedure pending the decision of the appropriate
authority in the matter, unless the applicant party requests otherwise in accordance
with paragraph 3. Should the requested party deem it necessary, and without
prejudice to Article 65 of this Annex, it may take precautionary measures to
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guarantee recovery insofar as the laws or regulations in force in its own State allow
such action for similar claims.
(3) Notwithstanding paragraph 2, the applicant party may, in accordance with the
laws, regulations and administrative practices in force in its own State, request the
requested party to recover a contested claim, insofar as the relevant laws, regulations
and administrative practices in force in the requested party’s State allow such action.
If the result of the contestation is subsequently favourable to the debtor, the applicant
party shall be liable for the reimbursement of any sums recovered, together with any
compensation due, in accordance with the legislation in force in the requested party’s State.
(4) Where the contestation concerns enforcement measures taken in the State of
the requested party, the action shall be brought before the appropriate authority of
that State in accordance with its laws and regulations.
(5) Where the appropriate authority before which the action is brought in
accordance with paragraph 1 is a judicial or administrative tribunal, the decision of
that tribunal, insofar as it is favourable to the applicant party and permits recovery
of the claim in the State of the applicant party, shall constitute the ‘instrument permitting enforcement’ within the meaning of Articles 59 and 60 of this Annex and the recovery of the claim shall proceed on the basis of that decision.
ARTICLE 63
Limits applying to assistance
(1) The requested party shall not be obliged:
(a) to grant the assistance provided for in Articles 59 to 62 of this Annex, if
recovery of the claim would, because of the situation of the debtor, create
serious economic or social difficulties in the State of the requested party,
insofar as the laws, regulations or administrative practices in force in the
State of the requested party allow such action for similar national claims;
(b) to grant the assistance provided for in Articles 57 to 62 of this Annex, if
the initial request under Articles 57 to 59 of this Annex applies to claims
more than five years old, dating from the moment the instrument
permitting the recovery was established in accordance with the laws,
regulations or administrative practices in force in the State of the
applicant party at the date of the request. However, if the claim or
instrument is contested, the time limit begins from the moment that the
State of the applicant party establishes that the claim or the enforcement
order permitting recovery may no longer be contested.
(2) The requested party shall inform the applicant party of the grounds for refusing
a request for assistance.
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ARTICLE 64
Periods of limitation
(1) Questions concerning periods of limitation shall be governed as follows:
(a) by the laws in force in the State of the applicant party, insofar as they
concern the claim or the instrument permitting its enforcement; and
(b) by the laws in force in the State of the requested party, insofar as they
concern enforcement measures in the requested State.
(2) Periods of limitation according to the laws in force in the State of the requested
party shall start from the date of direct recognition or from the date of acceptance,
recognition, supplementing or replacement in accordance with Article 60 of this
Annex.
(3) Steps taken in the recovery of claims by the requested party in pursuance of a
request for assistance, which, if they had been carried out by the applicant party,
would have had the effect of suspending or interrupting the period of limitation
according to the laws in force in the State of the applicant party, shall be deemed to
have been taken in the latter State, insofar as that effect is concerned.
ARTICLE 65
Precautionary measures
(1) Upon reasoned request by the applicant party, the requested party shall take
precautionary measures to ensure recovery of a claim insofar as the laws and
regulations in force in the State of the requested party so permit.
(2) For the purposes of implementing the first paragraph, the provisions and
procedures laid down in Articles 59, 60, 62 and 63 of this Annex shall apply mutatis
mutandis.
ARTICLE 66
Costs related to recovery
(1) The requested party shall recover from the natural or legal person concerned
and retain any costs linked to recovery which it incurs, in accordance with the laws
and regulations of the State of the requested party that apply to similar claims.
(2) Mutual assistance afforded under this Section shall, as a rule, be free of charge.
However, where recovery poses a specific problem or concerns a very large amount
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in costs, the applicant and the requested parties may agree on reimbursement
arrangements specific to the cases in question.
(3) The State of the applicant party shall remain liable to the State of the requested
party for any costs and any losses incurred as a result of actions held to be unfounded,
as far as either the substance of the claim or the validity of the instrument issued by
the applicant party is concerned.
TITLE V MISCELLANEOUS, TRANSITIONAL AND FINAL
PROVISIONS
ARTICLE 67
Medical examination and administrative checks
(1) Without prejudice to other provisions, where a recipient or a claimant of
benefits, or a member of that person’s family, is staying or residing within the territory of a State other than that in which the debtor institution is located, the
medical examination shall be carried out, at the request of that institution, by the
institution of the beneficiary’s place of stay or residence in accordance with the procedures laid down by the legislation applied by that institution.
The debtor institution shall inform the institution of the place of stay or residence of
any special requirements, if necessary, to be followed and points to be covered by
the medical examination.
(2) The institution of the place of stay or residence shall forward a report to the
debtor institution that requested the medical examination. This institution shall be
bound by the findings of the institution of the place of stay or residence.
The debtor institution shall reserve the right to have the beneficiary examined by a
doctor of its choice. However, the beneficiary may be asked to return to the State of
the debtor institution only if that beneficiary is able to make the journey without
prejudice to that person’s health and the cost of travel and accommodation is paid for by the debtor institution.
(3) Where a recipient or a claimant of benefits, or a member of that person’s
family, is staying or residing in the territory of a State other than that in which the
debtor institution is located, the administrative check shall, at the request of the
debtor institution, be performed by the institution of the beneficiary’s place of stay
or residence.
Paragraph 2 shall also apply in this case.
(4) As an exception to the principle of free-of-charge mutual administrative
cooperation in Article 58(3) of this Convention, the effective amount of the expenses
of the checks referred to in paragraphs 1 to 3 shall be refunded to the institution
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which was requested to carry them out by the debtor institution which requested
them.
ARTICLE 68
Notifications
(1) The States shall notify the Joint Administrative Committee of the details of the
bodies and entities defined in Article 1 of this Convention and of the institutions
designated in accordance with this Annex.
(2) The bodies specified in paragraph 1 shall be provided with an electronic
identity in the form of an identification code and electronic address.
(3) The Joint Administrative Committee shall agree the structure, content and
detailed arrangements, including the common format and model, for notification of
the details specified in paragraph 1.
(4) The States shall be responsible for keeping the information specified in
paragraph 1 up to date.
ARTICLE 69
Currency conversion
For the purposes of applying this Convention and this Annex, the exchange rate
between two currencies shall be the reference rate agreed by the Joint Administrative
Committee. The date to be taken into account for determining the exchange rate shall
be agreed by the Joint Administrative Committee and set out in the administrative
arrangements.
ARTICLE 70
Interim provisions for forms and documents
For an interim period, the end date of which shall be agreed by the Joint
Administrative Committee, all forms and documents issued by the competent
institutions in the format used immediately before this Convention comes into force
shall be valid for the purposes of implementing this Convention and, where
appropriate, shall continue to be used for the exchange of information between
competent institutions. All such forms and documents issued before and during that
interim period shall be valid until their expiry or cancellation.
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APPENDIX 1
Entitlement document (Articles 22 and 29(1) of this Convention and Article 22
of this Annex)
(1) Entitlement documents valid for the purposes of Articles 22 and 29(1) of this
Convention shall contain the following data:
(a) surname and forename of the document holder;
(b) personal identification number of the document holder;
(c) date of birth of the document holder;
(d) expiry date of the document;
(e) the code “UK” in lieu of the ISO code of the United Kingdom or the ISO code of Switzerland, as the case may be;
(f) identification number and acronym of the competent institution issuing
the document;
(g) logical number of the document;
(h) in the case of a provisional document, the date of issue and date of
delivery of the document, and the signature and stamp of the competent
institution.
(2) The technical specifications of entitlement documents shall be agreed by both
States through the Joint Administrative Committee in order to facilitate the
acceptance of the respective documents by institutions of the States providing the
benefits in kind.
ANNEX 2: CERTAIN BENEFITS TO WHICH THIS CONVENTION
SHALL NOT APPLY
Part 1: Special non-contributory cash benefits (point (a) of Article 6(4))
UNITED KINGDOM
(a) State Pension Credit (State Pension Credit Act 2002 and State Pension
Credit Act (Northern Ireland) 2002);
(b) Income-based allowances for jobseekers (Jobseekers Act 1995 and
Jobseekers (Northern Ireland) Order 1995);
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(c) Disability Living Allowance, mobility component (Social Security
Contributions and Benefits Act 1992 and Social Security Contributions
and Benefits (Northern Ireland) Act 1992);
(d) Personal Independence Payment, mobility component (Welfare Reform
Act 2012 (Part 4) and Welfare Reform (Northern Ireland) Order 2015
(Part 5));
(e) Employment and Support Allowance Income-related (Welfare Reform
Act 2007 and Welfare Reform Act (Northern Ireland) 2007);
(f) Best Start Foods payment (Welfare Foods (Best Start Foods) (Scotland)
Regulations 2019 (SSI 2019/193));
(g) Best Start Grants (pregnancy and baby grant, early learning grant,
school-age grant) (The Early Years Assistance (Best Start Grants)
(Scotland) Regulations 2018 (SSI 2018/370));
(h) Funeral Support Payment (Funeral Expense Assistance (Scotland)
Regulations 2019 (SSI 2019/292));
(i) Scottish Child Payment (The Scottish Child Payment Regulations 2020
(SSI 2020/351)).
SWITZERLAND
(a) Supplementary benefits (Federal Supplementary Benefits Act of 6
October 2006) and similar benefits provided for under cantonal
legislation.
(b) Non-contributory mixed benefits in the event of unemployment, as
provided for under cantonal legislation.
Part 2: Long-term care benefits (point (d) of Article 6(4))
UNITED KINGDOM
(a) Attendance Allowance (Social Security Contributions and Benefits Act
1992, Social Security (Attendance Allowance) Regulations 1991, Social
Security Contributions and Benefits (Northern Ireland) Act 1992 and
Social Security (Attendance Allowance) Regulations (Northern Ireland)
1992);
(b) Carer’s Allowance (Social Security Contributions and Benefits Act 1992, The Social Security (Invalid Care Allowance) Regulations 1976,
Social Security Contributions and Benefits (Northern Ireland) Act 1992)
and The Social Security (Invalid Care Allowance) Regulations (Northern
Ireland) 1976;
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(c) Disability Living Allowance, care component (Social Security
Contributions and Benefits Act 1992, Social Security (Disability Living
Allowance) Regulations 1991, Social Security Contributions and
Benefits (Northern Ireland) Act 1992 and Social Security (Disability
Living Allowance) Regulations (Northern Ireland) 1992);
(d) Personal Independence Payment, daily living component (Welfare
Reform Act 2012 (Part 4), Social Security (Personal Independence
Payment) Regulations 2013, The Personal Independence Payment
(Transitional Provisions) Regulations 2013, Personal Independence
Payment (Transitional Provisions) (Amendment) Regulations 2019,
Welfare Reform (Northern Ireland) Order 2015 (Part 5), The Personal
Independence Payment Regulations (Northern Ireland) 2016, The
Personal Independence Payment (Transitional Provisions) Regulations
(Northern Ireland) 2016 and Personal Independence Payment
(Transitional Provisions) (Amendment) Regulations (Northern Ireland)
2019);
(e) Carer’s Allowance Supplement (The Social Security (Scotland) Act
2018);
(f) Young Carer’s Grant (The Carer’s Assistance (Young Carer Grants)
(Scotland) Regulations 2020 (as amended));
(g) Child Winter Heating Assistance (The Winter Heating Assistance for
Children and Young People (Scotland) Regulations 2020 (SSI
2020/352)).
SWITZERLAND
Allowances for helpless persons under the Swiss Federal Act of 19 June 1959 on
invalidity insurance (LAI) and under the Federal Act of 20 December 1946 on old-
age and survivors’ pensions (LAVS) as amended on 8 October 1999.
Part 3: Payments which are connected to a branch of social security listed in
Article 6(1) and which are paid to meet expenses for heating in cold weather
(point (f) of Article 6(4))
UNITED KINGDOM
Winter Fuel Payment (Social Security Contributions and Benefits Act 1992, Social
Fund Winter Fuel Payment Regulations 2000, Social Security Contributions and
Benefits (Northern Ireland) Act 1992 and Social Fund Winter Fuel Payment
Regulations (Northern Ireland) 2000).
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ANNEX 3: CASES IN WHICH THE PRO RATA CALCULATION SHALL
BE WAIVED OR SHALL NOT APPLY
(Articles 49(4) and 49(5))
Part 1: Cases in which the pro rata calculation shall be waived pursuant to
Article 49(4)
UNITED KINGDOM
All applications for retirement pension, state pension pursuant to Part 1 of the
Pensions Act 2014, widows’ and bereavement benefits, with the exception of those
for which during a tax year beginning on or after 6 April 1975:
(a) the person concerned had completed periods of insurance, employment
or residence under the legislation of both States; and one (or more) of the
tax years was not considered a qualifying year within the meaning of the
legislation of the United Kingdom;
(b) the periods of insurance completed under the legislation in force in the
United Kingdom for the periods prior to 5 July 1948 would be taken into
account for the purposes of point (b) of Article 49(1) of this Convention
by application of the periods of insurance, employment or residence
under the legislation of Switzerland.
All applications for additional pension pursuant to the Social Security Contributions
and Benefits Act 1992, section 44, and the Social Security Contributions and
Benefits (Northern Ireland) Act 1992, section 44.
SWITZERLAND
All claims for old-age, survivors’ and invalidity pensions under the basic scheme
(Federal Law on old-age and survivors’ insurance and Federal Law on invalidity insurance).
Part 2: Cases in which Article 49(5) applies
UNITED KINGDOM
Graduated retirement benefits paid pursuant to the National Insurance Act 1965,
sections 36 and 37, and the National Insurance Act (Northern Ireland) 1966, sections
35 and 36.
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ANNEX 4: SPECIAL PROVISIONS FOR THE APPLICATION OF THE
LEGISLATION OF THE STATES
(Articles 6(2), 53(1) and 68)
UNITED KINGDOM
(1) Where, in accordance with United Kingdom legislation, a person may be
entitled to a retirement pension if:
(a) the contributions of a former spouse are taken into account as if they
were that person’s own contributions; or
(b) the relevant contribution conditions are satisfied by that person’s spouse or former spouse, then provided, in each case, that the spouse or former
spouse is or had been exercising an activity as an employed or self-
employed person, and had been subject to the legislation of both States,
the provisions of Chapter 5 of Title III of this Convention shall apply in
order to determine entitlement under United Kingdom legislation. In that
case, references in Chapter 5 of Title III of this Convention to ‘periods of insurance’ shall be construed as references to periods of insurance completed by:
(i) a spouse or former spouse where a claim is made by:
- a married woman, or
- a person whose marriage has terminated otherwise than by the
death of the spouse; or
(ii) a former spouse, where a claim is made by:
- a widower who immediately before pensionable age is not entitled
to a widowed parent’s allowance, or
- a widow who immediately before pensionable age is not entitled to
a widowed mother’s allowance, widowed parent’s allowance or widow’s pension, or who is only entitled to an age-related widow’s pension calculated pursuant to point (b) of Article 49(1) of this
Convention, and for this purpose ‘age-related widow’s pension’ means a widow’s pension payable at a reduced rate in accordance with section 39(4) of the Social Security Contributions and
Benefits Act 1992.
(2) For the purposes of applying Article 11 of this Convention in the case of old-
age or survivors’ cash benefits, pensions for accidents at work or occupational diseases and death grants, any beneficiary under United Kingdom legislation who is
staying in the territory of Switzerland shall, during that stay, be considered as if they
resided in the territory of Switzerland.
(3) (a) For the purpose of calculating an earnings factor in order to determine
entitlement to benefits under United Kingdom legislation, for each week
of activity as an employed person under the legislation of Switzerland,
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and which commenced during the relevant income tax year within the
meaning of United Kingdom legislation, the person concerned shall be
deemed to have paid contributions as an employed earner, or have
earnings on which contributions have been paid, on the basis of earnings
equivalent to two-thirds of that year’s upper earnings limit.
(b) For the purposes of point (b) of Article 49(1) of this Convention, where:
(i) in any income tax year starting on or after 6 April 1975, a person
carrying out activity as an employed person has completed periods
of insurance, employment or residence exclusively in Switzerland,
and the application of point (1) of this paragraph results in that year
being counted as a qualifying year within the meaning of United
Kingdom legislation for the purposes of point (b)(i) of Article
49(1) of this Convention, they shall be deemed to have been
insured for 52 weeks in that year in Switzerland;
(ii) any income tax year starting on or after 6 April 1975 does not count
as a qualifying year within the meaning of United Kingdom
legislation for the purposes of point (b)(i) of Article 49(1) of this
Convention, any periods of insurance, employment or residence
completed in that year shall be disregarded.
(c) For the purpose of converting an earnings factor into periods of
insurance, the earnings factor achieved in the relevant income tax year
within the meaning of United Kingdom legislation shall be divided by
that year’s lower earnings limit. The result shall be expressed as a whole
number, any remaining fraction being ignored. The figure so calculated
shall be treated as representing the number of weeks of insurance
completed under United Kingdom legislation during that year, provided
that such figure shall not exceed the number of weeks during which in
that year the person was subject to that legislation.
(d) Where receipt of Widowed Parent’s Allowance or Bereavement Support Payment (higher rate) is contingent on entitlement to UK Child Benefit,
a person meeting all other eligibility criteria, and who would be eligible
to receive UK Child Benefit if they, or the relevant child, were resident
in the UK, will not be prevented from claiming Widowed Parent’s Allowance or Bereavement Support Payment (higher rate) in accordance
with this Convention, notwithstanding the fact that UK Child Benefit is
excluded from the material scope of this Convention under Article
6(4)(g).
SWITZERLAND
(1) (a) Article 2 of the Federal Old-Age and Survivors' Insurance Act and
Article 1 of the Federal Invalidity Insurance Act, which govern voluntary
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insurance in these insurance branches for Swiss nationals who do not
reside in a Member State of the European Union or in a European Free
Trade Association state, shall be applicable to Swiss nationals and
nationals of a European Union Member State if they declare their
accession to the voluntary insurance not later than one year after the date
on which they ceased to be covered by old-age, survivors' and invalidity
insurance after a continuous period of insurance of at least five years.
(b) Where a person ceases to be insured under Swiss old-age, survivors’ and
invalidity insurance after a continuous period of insurance of at least five
years, they shall continue to be entitled to be insured with the agreement
of the employer if they work outside the United Kingdom for an
employer in Switzerland and if they submit an application to this effect
within six months of the date on which they cease to be insured.
(c) Where in application of Article 9(6), the Swiss legislation applies to the
spouse and the children, they are insured in the Swiss old-age, survivors’ and invalidity insurance.
(2) The Swiss legal provisions governing compulsory sickness insurance shall
apply to persons subject to Swiss legal provisions under the terms of Title II of this
Convention and persons for whom Switzerland is the competent State under Articles
27 and 28 of this Convention even if they are not resident in Switzerland.
(3) Periods of daily allowance insurance completed under the insurance scheme of
the United Kingdom shall be taken into account for reducing or lifting a possible
reserve in daily allowance insurance in the event of maternity or sickness where the
person becomes insured with a Swiss insurer within three months of ceasing to be
covered by insurance in the United Kingdom.
(4) Extraordinary pensions provided under the Swiss old-age, survivors’ and
disability insurance shall be provided exclusively if the person concerned resides in
Switzerland. United Kingdom citizens shall, under the same conditions as Swiss
nationals, be entitled to receive a Swiss extraordinary survivors’ pension, disability pension or old-age pension which replaces a disability or survivors’ pension if,
immediately before the date from which they claim the pension they have resided in
Switzerland for a continuous period of not less than five years. No account shall be
taken of any period during which the persons concerned were exempted from the
Swiss old-age, survivors’ and disability insurance. A period of residence in Switzerland shall not be regarded as interrupted if the absence from Switzerland is
not more than three months in any calendar year. The period of three months may be
extended in exceptional cases.
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